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SELECTIVE SERVICE AND AMNESTY 



HEARING 

BEFORE THE 

SUBCOMMITTEE ON 
ADMINISTRATIVE PEACTICE AND PROCEDURE 

OP THE 

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

NINETY-SECOND CONGRESS 

SECOND SESSION 

ON 

SELECTIVE SERVICE SYSTEM PROCEDURES AND 
ADMINISTRATIVE POSSIBILITIES FOR AMNESTY 



FEBRUARY 28, 29, MARCH 1, 1972 



Printed for the use of the Committee on the Judiciary 




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U.S. GOVERNMENT PRINTING OFFICE 
80-620 WASHINGTON : l l J72 

NORTHEASTERN UNIVERSITY SCHOOL of LAW LIBRARY 



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COMMITTEE ON THE JUDICIARY 

JAMBS O. EASTLAND, Mississippi, Chairman 

JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska 

SAM J. ERWIN, Je., North Carolina HIRAM L. FONG, Hawaii 

PHILIP A. HART, Michigan HUGH SCOTT, Pennsylvania 

EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina 

BIRCH BAYH, Indiana MARLOW W. COOK, Kentucky 

QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, Jr., Maryland 

ROBERT C. BYRD, West Virginia EDWARD J. GURNEY, Florida 
JOHN V. TUNNEY, California 



Subcommittee on Administrative Practice and Procedure 

EDWARD M. KENNEDY, Massachusetts, Chairman 
PHILIP A. HART, Michigan STROM THURMOND, South Carolina 

BIRCH BAYH, Indiana CHARLES McC. MATHIAS, Jr., Maryland 

QUENTIN V. BURDICK, North Dakota EDWARD J. GURNEY, Florida 

JOHN V. TUNNEY, California 

James F. Flug, Chief Counsel 

Thomas M. Susman, Assistant Counsel 

Mark L. Schneider, Investigator 

Henry Herlong, Minority Counsel 

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CONTENTS 



Hearings held on — 

February 28, 1972. 
February 29, 1972. 
March 1, 1972. 
Testimony of: Page 

Benade, Maj. Gen. Leo, Defense Department Assistant Secretary 263 

Brunk, Conrad, National Iuterreligious Service Board for Con- 
scientious Objectors 155 

Carson, Everett Brown, 1st Lt., Marine Corps 201 

Commager, Henry Steele, professor of history, Amherst University 182 

Flanagan, The Very Reverend Bernard, Roman Catholic Bishop, 

Diocese of Worcester, Mass 277 

Gaylin, Dr. Willard, professor of psychiatry and law, Columbia 

University 294 

Geiger, John H., National Commander, American Legion, accom- 
panied by Emmitt Lanahan, chairman, National Security Com- 
mission, American Legion, and Harold Stringer, director, Leg- 
islative Commission, American Legion 237 

Harris, David 192 

Hendricks, Mike, Montreal 228 

Karpatkin, Marvin M., American Civil Liberties LTnion 63 

Kelley, Martin, Gold Star Parent 197 

Kendall, Sam, Richmond, V*a 216 

Kerns, James R., Vietnam Veterans for a Just Peace 206 

Kushner, Mrs. Valerie M 213 

Lord, The Very Reverend John Wesley, Methodist Bishop of Wash- 
ington, accompanied by Dennis Freeman, conscientious objector and 

draft counselor 277 

Maloney, Timothy, Winnepeg 225 

Maroney, Keivn T., Deputy Assistant Attorney General, Department 
of Justice, accompanied by John H. Davit t, Chief of the Criminal 
Section, Internal Security Division, and Rovert W. Vayda, Attor- 
ney, Selective Service Unit, Department of Justice 271 

O'Neill, James, Truman Amnesty Review Board 255 

Porter, Charles O., attorney, former Member of Congress, former 
White House staff member, Major (Air Force, Retired), and Chair- 
man of the National Committee for Amnesty Now 311 

Ransom, Mr. and Mrs. Robert, Gold Star parents 246 

Sax, Joseph, University of Michigan Law School 285 

Schulz, John, Editor, Selective Service Law Reporter 79 

Schwartzchild, ACLU, Amnesty Division Director 301 

Shattuck, Jack, American Friends Service Committee 104 

Silard, Bela, American Ethical Union 165 

Tarr, Curtis W., Director, Selective Service System, accompanied by 
Samuel R. Shaw, legislative liaison, and Walter H. Morse, general 

counsel, Selective Service System 5 

Tatum, Arlo, Central Committee for Conscientious Objectors 169 

Tuchinsky, Joseph, Midwest Committee for Draft Counseling 131 

Wilson, Rev. Alexander C, pastor, Westminister United Presbj'terian 

Church, Burgettstown, Pa 222 

Wilson, William K 152 

Statements, letters, et cetera, submitted for the record by — - 

American Legion, Past Commanders 316 

Bay Area Selective Service Lawyers Panel 316 

Brophy, Michael and Mayerhoff, Mark — Wisconsin U 317 

Colhoun, Jack — American Expatriate 325 

(in) 



IV 

Statements, letters, et cetera, submitted for the record by — Continued P»se 

Collins, Virginia — New Orleans 325 

Connors, Thomas J. — Waltham, Mass 326 

Davis, Harold M— Flagstaff, Ariz 327 

Disabled American Veterans, Charles L. Huber 328 

Draft Counseling Center, Buffalo, N.Y 329 

Emerick, Kenneth — Clarion State College 331 

Gordon, Mrs. Doris — Silver Spring, Md 335 

Celia E. Kaplan— New York, N.Y 336 

Klein, Julius, Jewish War Veterans 336 

Mac Arthur, John H.— Clarksburg, Md 337 

Magney, Richard A. — Spokane, Wash 340 

Marsh, Theodore D. — Encinitas, Calif 340 

McGee, Vincent F. — Allenwood, Pa 341 

Merker, Mrs. Robert A. — Northbrook, 111 342 

National Association of Laity 343 

National Association of Laymen „ 345 

National Student Association 346 

Pratt, Don B. — Milan, Michigan 350 

Sibert, Scott A. — Washington, D.C 351 

Siegal, Glenn R 352 

Social Concern, Joint Washington Office for — Robert E. Jones 353 

United Church of Christ — Robert V. Moss, Pres 356 

Veterans Affairs, Division of — Seattle, Wash 357 

V.F.W. — Joseph L. Vicites, Commander in Chief 361 

Vietnam Vets Against the War 362 

Veterans of W.W. I, Herbert M. Houston 363 

World Justice and Peace Office 365 

Young Americans for Freedom, Jerry Norton 366 

APPENDICES 

1. Selective Service System Responses to Questions from Subcommittee-. 367 

2. Defense Department Responses to Questions from Subcommittee 382 

3. Justice Department Responses to Questions from Subcommittee 394 

4. Justice Department Correspondence with Subcommittee Chairman 398 

5. American Ethical Union on Conscientious Objection: Selected Public 

Affairs Resolutions 400 

6. Colhoun, Jack, "Amnesty in 1947: A Bad Deal" 404 

7. Dorris, Jonathan T., "Treatment of Confederates by Lincoln and 

Johnson" 410 

8. Duscha, Julius, "Amnesty?" 434 

9. Freeman, Harrop A., "An Historical Justification and Legal Basis for 

Amnesty Today" 437 

10. Jones, Douglas and Raish, David, "American Deserters and Draft 

Evaders : Exile, Punishment or Amnesty?" 450 

11. Lusky, Louis, "Amnesty: What Sort Will Bind Our Wounds" 478 

12. Lusky, Louis, "Amnesty for Whom, and How Much?" 480 

13. Report of the President's Amnesty Board, 1947 485 

14. Roth, Jeffrey and Rothman, Mitchell, "The Authority of Congress to 

Grant Amnesty" 490 

15. Selective Service System Local Board Memorandum No. 107 (Criteria 

for CO Classification) 501 

16. Silard, Bela, "Invalid Conscientious Objector Classification Criteria 

of Local Board Memorandum 107: The Asserted Training Require- 
ment" 503 

17. Silard, Bela, "Invalid Disruption Rules for CO Alternative Service".. 521 

18. U.S. v. Seeger, Ethical Union Amicus Brief 555 

19. Gutknecht v. United States, Supreme Court decision (1969) 578 

20. Welsh v. United States, Supreme Court decision (1970) 586 

21. Selective Service Amendments of 1971 602 

22. Conference Report on Selective Service Amendments of 1971 618 

23. Selective Service System Final Regulations 652 

24. Reston, James, "Reconciliation, Not Retribution — Universal Am- 

nesty" 653 

25. Clark, Kenneth B. et al, "Statement on Amnesty" 655 

26. Sargent, John D., "The Power of Congress to Enact Amnesty Legis- 

lation" 657 

27. Etridge, John C, "Amnesty: A Brief Historical Overview". — 660 



SELECTIVE SERVICE PROCEDURES AND ADMINISTRA- 
TIVE POSSIBILITIES FOR AMNESTY 



MONDAY, FEBRUARY 20, 1972 

U.S. Senate, 
Subcommittee on Administrative Practice and 

Procedure of the Committee on the Judiciary, 

Washington, D.G. 

The subcommittee met, pursuant to notice, at 10 :55 a.m., in room 
4232, New Senate Office Building, Senator Edward M. Kennedy 
(chairman of the subcommittee) presiding. 

' Present: Senators Kennedy (presiding), Hart, Thurmond, and 
Gurney. 

Also present : James Flug, chief counsel ; Thomas Susman, assistant 
counsel; Henry Herlong, minority counsel; and Mark L. Schneider. 

Senator Kennedy. The subcommittee will come to order. 

First of all, I want to apologize to our witnesses for being late 
starting the meeting. I was testifying in the House Foreign Affairs 
Committee which started at 9:30 this morning. I wish to express 
my regrets to our witnesses this morning, and also to the members of 
the press. 

Senator Gurney. How about the members of the subcommittee? 

Senator Kennedy. And to the members of the subcommittee. I did 
not see you there, Ed. I saw Phil. It is nice to have you here. 

The Senate Subcommittee on Administrative Practice and Pro- 
cedures begins its inquiry this morning with a two-fold purpose: 
first, to examine the current administration of the Selective Service 
System in the light of the recommendations of this subcommittee 2 
years ago and the procedural implications of the Military Selective 
Service Act of 1971 : and second, to explore the administrative possi- 
bilities and problems of granting executive amnesty or other forms 
of clemency to men who have chosen exile, to men who have chosen 
prison, or to men who have chosen "to go underground" rather than 
fulfill the obligation that the military selective service law has im- 
posed on them. 

The two issues are related in a most basic way. The draft is the 
driving force in the acquisition of military manpower, and the use 
of American military forces in Vietnam has for the first time in 
history turned us from a haven for political exiles into a creator of 
political exiles. 

TVhile the number of American troops in Vietnam has decreased 
substantially, the war goes on. Each week, new bombing records are 
set. Each week, there are more refugees and more civilian casualties. 
Each week we add to the toll of American deaths, and each week, 
American flyers are added to the prisoner-of-war list. 

(1) 



So here at home, the war continues to hang over the lives of young 
men like a storm cloud, forcing another generation to continue to 
make life and career decisions with one eye on the draft lottery and 
the other on Selective Service regulations. At this morning's session, 
we shall seek to meet our responsibility to these men to insure that 
the system which decides "who shall serve when not all serve" oper- 
ates equitably and evenly. We will also get Mr- Tarr's views on the 
impact of an amnesty policy on the administration of the draft. 

However, tomorrow and Wednesday we will concentrate entirely 
on the history and philosophy of amnesty, on the alternative ways 
to provide it, and on the implications for this nation both of granting 
amnesty and of denying amnesty. Our major focus will be on the 
administrative avenues of relief, which have in the past been the 
Nation's primary response to the question of reconciliation. 

Even if we cannot answer all the difficult questions about amnesty, 
we hope to foster a dialog which will illuminate the complexities of 
this issue for all of us. 

The issue of amnesty generates strong emotions across the country. 
How, some ask, can amnesty be offered to those who fled when others 
fought? But, others assert, how can amnesty not be offered to those 
who were right about the war before the rest of us ? 

We shall hear from those who have administered and studied 
amnesty in the past, and those who are most concerned now — from 
parents, from veterans, from exiles, and from men who have served 
in prison rather than participate in a war they considered immoral. 

Before moving on to our first witnesses I want to stress that this 
subcommittee as always acknowledges and recognizes that the pri- 
mary legislative responsibility for the Selective Service Act is with 
the Armed Services Committee, and recognizes as well the jurisdiction 
of the Criminal Laws Subcommittee of the Judiciary Committee, to 
which Senator Taft and others have made legislative recommenda- 
tions in terms of amnesty. Our committee is primarily interested in 
the administrative procedures that can be followed to achieve the 
amnesty. 

I am going to ask that the rest of the statement be included in its 
entirety in the record at this time. 

(The full statement of Senator Kennedy follows:) 

Prepared Statement of Senator Edward M. Kennedy, of Massachusetts, 

February 28, 1972 

The Senate Subcommittee on Administrative Practice and Procedure begins 
its inquiry this morning with a two-fold purpose : first, to examine the current 
administration of the Selective Service System in the light of the recommen- 
dations of this Subcommittee two years ago and the procedural implications of 
the Military Selective Service Act of 1971 ; and second, to explore administra- 
tive possibilities and problems of granting executive amnesty or other forms of 
clemency to men who have chosen exile, to men who have chosen prison, or to 
men who have chosen "to go underground" rather than fulfill the obligation 
that the Military Selective Service Law has imposed on them. 

The two issues are related in a most basic way. The draft is the driving force 
in the acquisition of military manpower, and the use of American military 
forces in Vietnam has for the first time in history turned us from a haven for 
political exiles into a creator of political exiles. 

While the number of American troops in Vietnam has decreased substantially, 
the war goes on. Each week, new bombing records are set. Each week, there 



are more refugees and more civilian casualties. Each week, we add to the toll 
of American deaths, and each week, American flyers are added to the prisoner- 
of-war list. 

So here at home, the war continues to hang over the lives of young American 
men like a storm cloud, forcing another generation to continue to make life 
and career decisions with one eye on the draft lottery and the other on Selective 
Service regulations. At this morning's session, we shall seek to meet our re- 
sponsibility to these men to insure that the system which decides, "who shall 
serve when not all serve" operates equitably and evenly. We will also get Mr. 
Tarr's views on the impact of an amnesty policy on the administration of the 
draft. 

However, tomorrow and Wednesday, we will concentrate entirely on the his- 
tory and philosophy of amnesty, on the alternative ways to provide it, and on 
the implications for this nation both of granting amnesty and of denying 
amnesty. Our major focus will be on the administrative avenues of relief, which 
have in the past been the nation's primary response to the question of recon- 
ciliation. 

Even if we cannot answer all the difficult questions about amnesty, we hope 
to foster a dialogue which will illuminate the complexities of this issue for all 
of us. 

The issue generates strong emotions across the country. How, some ask, can 
amnesty be offered to those who fled when others fought? But, others assert, 
how can amnesty not be offered to those who were right about the war before 
the rest of us? 

We shall hear from those who have administered and studied amnesty in 
the past, and those who are most concerned now — from parents, from veterans, 
from exiles, and from men who have served in prison rather than participate 
in a war they considered immoral. 

Before moving on to our first witness, I want to stress that, as always, this 
Subcommittee delves into this field with the full acknowledgement and recog- 
nition that primary legislative responsibility lies in other Committees with 
whom we keep close touch. Any changes in the Military Selective Service Act 
must, of course, be a matter for the Armed Services Committee, which in the 
past has given the most serious consideration to our studies and recommenda- 
tions. On the subject of amnesty, to the extent a legislative route may be 
decided upon, there are proposals which are before the Criminal Laws Sub- 
committee, and I am pleased to sit on that Subcommittee as well. 

As we start today's hearing, I would like to recall that two years ago this 
Subcommittee issued a report with recommendations for Selective Service 
reform. 

Many of the reforms which we suggested, or which the Marshall Commission 
suggested three years before that, have been accomplished by legislative, execu- 
tive, or court action : 

— the elimination of occupational deferments 

— the institution of random selection of registrants with the youngest drafted 
first and use of computer to assure the random nature of selection process 

— an end to new undergraduate and graduate student deferments. 

— an end to punitive reclassification 

— an end to state and local quotas and use of national system operated under 
uniform rules 

— the director of Selective Service to be a civilian 

— the registrant to have the right to present witnesses, and the right to per- 
sonal appearances at local and all appeal boards, the right to require a quorum 
of board members at personal appearances, the right to have a written state- 
ment of reasons for denial of claims and the right to have a reopening of case 
on a showing of new facts. 

In some of these areas, the new Director has provided a welcome concern for 
the need to reform and he should certainly be commended for his efforts in 
that regard. 

However, it was clear in this year's draft debate that the opposition of the 
Selective Service System to procedural rights for registrants, to pre-publication 
requirements and to statutory requirements for non-discrimination in the ap- 



pointment of local and appeal board members, reflected a willingness to unduly 
sacrifice the rights of registrants to the ease of its own operations. 

Now, we are concerned at recent actions of the Selective Service System in 
seeking to meet the procedural requirements of the Military Selective Service Act 
of 1971. 

For the first time, that Act clearly sought to guarantee registrants that they 
would be treated fairly and that their rights would be preserved. 

And so specific changes were made, changes which I think were important 
to insure greater uniformity and coherence to the system. 

First, it was required that the system pre-publish its regulations and afford 
a 30-day period for comment, This amendment which I introduced, was passed 
in the Senate, approved by the Conference and finally ratified by both Houses. 

It was intended to insure that the rules affecting registrants would be clear, 
concise, correct, and cohesive, and would have the benefit of outside comment 
before they were finally issued. 

In practice, that mandate has been doubly weakened. On the one hand, many 
vital guidelines for local boards and appellate procedures, substantially affect- 
ing the rights and obligations of registrants, have been issued without the op- 
portunity for comment and thus in violation of the spirit, if not the letter, of 
the law. On the other hand, the pre-published regulations have been allowed 
to become bogged down and delayed within the Executive Bureaucracy, so that 
5 months after complete regulations should have been issued, the various pro- 
posals are still in disparate stages of flux and finality. 

The overall result is a layering of directives, letters, memoranda, proposed 
reguations, and regulations that presents the boards themselves, the registrants, 
and all of us, with a confusing maze of contradictory instructions. 

It is bad enough that the registrant is in the dark, but it is ludicrous that 
the local board members also are closeted with the musty practices of the past 
and denied exposure to the present state of the law. No copies of the law, of 
the conference report, of proposed regulations, or of final regulations have been 
sent to individual local board members by the national headquarters of Selec- 
tive Service. 

If there is information available to the local board members, it comes from 
their clerk or from the state office on the same haphazard basis that was con- 
demned by the Marshall Commission 5 years ago. 

The board member apparently is expected to absorb the intricacies of the 
applicable laws, regulations, and directives, from the clerk, who has the board's 
sole copies, at the moment the board sits to judge each registrant's claim for 
a classification. 

In short, then, the information process in the system just is not working. 

Second, at a time when the Congress specifically has granted new rights — to 
present witnesses, to obtain a written statement of reason for the denial of a 
claim, to require a quorum, to require allowance of personal appearances — the 
Selective Service System has been lethargic in its response. 

Thousands of young men remain in limbo, unsure of their status, unaware 
of their current rights and obligations, unable to make the appearances or 
appeals to which law and equity entitle them. 

And third, and more disturbing, in a variety of ways, wherever the Congress 
failed expressly to broaden a registrant's rights, the new regulations tend to 
restrict then : 

— the government appeal agent was removed without being replaced by legal 
advisors with the same powesr to order reopening of cases; 

— the time period for filing appeals has been cut in half and in at least one 
instance in quarters ; 

— the conscientious objector now faces prosecution for failure to perform his 
work satisfactorily on the word of his employer and the judgment of the state 
director — all without legal counsel or rights to appeal. 

Despite the reforms, that is what has happened, and we want to know why. 

And we would like to hear from the Director why in the past two years, 
nothing has been done to effect any substantial change in the under-representa- 
tion of minorities on appeal boards, where unbiased treatment is a critical re- 
quirement for justice. In 24 states, there is not a single black, Chicano, Indian 
or Oriental on an appeal board. 



These are some of the questions that we hope can be answered today, so that 
we can insure that the trend underway since the repressive 1967 law, a trend 
toward more equity and justice for the individual registrant, can be continued 
and accelerated. We not only have a long way to go, but the recent actions of 
the Selective Service System raise questions as to whether it is aware of the 
direction in which it is headed. 

Senator Kennedy. Senator Hart. 

Senator Hart. No statement. I am just grateful that you have 
again permitted us to focus in an effort really better to understand 
how we can achieve what I hope all of us seek, to manage as a people 
to insure that the State does not form our conscience, and that we 
remain free, not just theoretically, but practically, to be able to be 
protected in the exercise of our conscience. 

Senator Kennedy. Senator Thurmond. 

Senator Thurmond. Thank you, Mr. Chairman. 

Mr. Chairman, I just want to say that I happen to be a member of 
the Armed Services Committee too, and I presume it is not intended 
here to go into matters of which the Armed Services Committee has 
jurisdiction. I should be glad to participate in the hearings on that 
basis. 

The Selective Service System, in my judgment, is essential to the 
security of the Nation. We only use the Selective Service System 
when we do not get enough volunteers. If we do not get enough 
volunteers then what will the defense establishment do? What will 
our country do unless we have a Selective Service System? I am 
very pleased to listen here and to hear what the witnesses have to 
say, and we are delighted Dr. Tarr is with us here today, who is 
an expert on this question. 

Senator Kennedy. Thank you very much. 

Senator Gurney. 

Senator Gtjrney. No statement, Mr. Chairman. 

Senator Kennedy. Mr. Tarr, we want to welcome you to the 
committee. I must say that I have enjoyed the opportunity I have 
had in the past to talk with you about some of these matters. You 
have been extremely cooperative and helpful, and willing to meet 
with me individually about some of the procedures which have 
been followed by the Selective Service System. And I want to extend 
a warm welcome to you and to your associates for coming up here 
this morning. 

You may proceed in whatever way you wish. You have a very ex- 
tensive statement. You were very kind to make it available to us over 
the course of the weekend. So often we do not get the testimony, and 
then we are all trying to read it for the first time the morning of the 
hearing. I want to commend you for it. and you may either read the 
statement or summarize it, it is fine with me. I have had a chance to 
go over it ; and I know the areas which I am interested in developing. 

STATEMENT OF CTJETIS W. TARR, DIRECTOR OF SELECTIVE 
SERVICE; ACCOMPANIED BY SAMUEL R. SHAW, LEGISLATIVE 
LIAISON, AND WALTER H. MORSE, GENERAL COUNSEL 

Mr. Tarr. Mr. Chairman, I would like to read the statement, 
because I think that it will provide a basis by which fuller ques- 
tioning would be more effective. 



Mr. Chairman, I appreciate the opportunity to appear before you. 

Senator Kennedy. What are the names of your associates, please ? 

Mr. Tare. Excuse me. Mr. Samuel Shaw. He is our director of — 
what do we call you, Sam? 

Mr. Shaw. Legislative liaison. 

Mr. Tarr. And Mr. Walter Morse is our general counsel. 
^ During the 5 months that have elapsed since the President 
signed the bill amending the Military Selective Service Act, we in 
Selective Service have been busy with changes required by the 
legislation and the continuation of major modifications of the System 
that started with my appointment nearly 2 years ago. 

I accepted this position with an acute awareness of the anguish 
that conscription brings into the lives of young people. For 10 
years before coming to Washington, I worked with college youth. 
I have vivid memories of their experiences, none of which caused 
them more uncertainty than the prospects of compulsory service in 
a war they did not understand. Yet I realized that the draft could 
not be halted abruptly without affecting critically the military 
strength of the Nation, perhaps to a perilous degree. Someone had 
to assume the difficult role of becoming Director, responding to the 
continuing needs for manpower requested by the Secretary of 
Defense, and at the same time initiating essential reforms. 

The President offered his advice when he directed me to assume 
this responsibility that he knew I accepted with reluctance. He 
recommended that I consider seriously all those actions which prom- 
isedto make the draft more equitable to the young people of this 
Nation. The President then described for me the thorough review of 
manpower procurement for the Armed Forces that had been under- 
taken by the National Security Council, suggesting that I might 
gain considerable insight from that source. Secretary Kelley men- 
tioned this study several times in his testimony before this sub- 
committee in 1969. 

I spent many hours with the National Security Council personnel 
who undertook this work. In fact, I hired four of them to join my 
staff. The Council study group had made a splendid historical 
investigation, they had analyzed thoroughly the legal implications 
of change, they knew a great deal about inequities, and they under- 
stood management problems. Their work and my own investigation 
became the basis for our major reorganization and reorientation 
of the Selective Service System. 

Mr. Chairman, I have prepared a chart indicating the major 
recommendations of the Marshall Commission, the Clark panel, 
the Magruder task force, the General Accounting Office, and finally, 
the comprehensive work of this subcommittee just before I became 
Director. I have also shown the progress made in each of these areas 
during the last 2 years. I would appreciate having the chart included 
in the record, authough I will not take the time to read it now. 

Senator Kennedy. We will include it in the record. 

(The chart referred to by Mr. Tarr follows:) 



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15 

Department of Justice, 
Washington, D.C., February 23, 1972. 

Mr. Walter H. Morse, 

General Counsel, Selective Service Sxjstem, Washington, D.C. 

Dear Mr. Morse: This is in response to your request for my views on 
whether the pre-publication requirement in Section 13(b) of the Military 
Selective Service Act, as amended, 1 applies only to Selective Service Regu- 
lations or also applies to "all directives that have a significant impact on 
registrants, incuding LBM's and LASD's." 2 You have indicated to me your 
own view that this requirement applies only to Selective Service Regulations, 
and have furnished me with copies of the System's letter to Senator Kennedy 
of December 22, 1971 expressing this view and of the debates in the 
Senate on June 17, 1973 3 on the proposed amendment of Section 13(b) which 
In my opinion, and as will appear below from the plain language of the 
provision, its legislative history, and a long and well-known administrative 
interpretation of the terms involved, the pre-publication requirement of 
Section 13(b) of the Military Selective Service Act applies in general only 
to Selective Service Regulations. Except to the very limited extent noted 
hereinafter, this requirement is inapplicable to internal communications within 
the Selective Service System such as LBM's, LASD's, and other messages issued 
by System headquarters or other parts of the System for the purpose of carry- 
ing on and managing System operations. 

Before considering whether Section 13(b) applies to System materials other 
than the Regulations, some review is in order of the historic and fundamental 
differences between the Regulations and these other materials. The general 
distinction between Selective Service Regulations and various internal System 
communications such as LBM's and LASD's has long been known to most 
persons who are knowledgeable about selective service affairs. For a generation, 
Selective Service Regulations have been published in the Code of Federal 
Regulations as Title 32, Chapter XVI, and until just a few months ago 
amendments to these Regulations were almost always issued by the President. 4 
The other materials in question are not so codified and have never been issued 
by the President. Moreover, Selective Service Regulations generally have the 
force of law and are binding upon private persons according to their terms, 
while internal System communications such as LBM's and LASD's may be 
advisory or informational as well as imperative in function, and even if 
imperative they are generally intended to be binding only upon those elements 
of the System to which they are addressed, and only to the extent they do 
not conflict with a Regulation. 

Furthermore, examination of the subject and structure of the more than 
two dozen Parts of the Selective Service Regulations makes it clear that 
the Regulations contain a mass of substantive and procedural provisions 



'PI. 92-129. approved Sept. 2S, 1971, sec. 101(a) (32), 85 Stat. 353, 50 U.S. Code 
App. sees. 451 et seq. 

- The quoted phrase is from a letter dated December 10, 1971 from Senator Kennedy 
to Selective Service Director Tarr expressing the view that all such directives are within 
the pre-publication requirement of Section 13(b) of the Act. The term LBM means 
Local Board Memorandum : LASD means Letter to All State Directors. 

3 Cong. Rec. pages S 9355 through S 9360. 

added this pre-publication requirement to the law. 

4 See Executive Order No. 11623 of October 12, 1971, 36 Fed. Reg. 19963 of Oct. 14, 
1971. which broadly delegated to the Director of the System, subject to prescribed pro- 
cedures, the President's authority to issue Selective Service Regulations. Prior to this 
action last October, and at the time the pre-publication provision in Section 13(b) of 
the Act was passed, the Director had been delegated only a verv limited amount of 
authority to issue such Regulations, but was not inhibited in issuing LBM's, LASD's. 
etc. on his own authority, except of course to the extent such an internal communica- 
tion might be inconsistent with the Regulations and other sources of law. Thus, in the 
world of selective service, the word "regulations" can generally be regarded as meaning 
the kind of materials that were issuer! by the President rather than by the Director, or 
under the very limited Presidential authority to issue regulations long delegated to 
the Director, until the time some weeks after the pre-publication amendment to Sec. 
13(b) was passed when Executive Order 11623 was issued. 



16 

representing an exercise of authority delegated by Congress in the statute.* 
Such authority goes beyond the minimal basic authority, usually character- 
ized as executive, administrative, managerial or ministerial, that is needed 
to run any organization and to carry out any organizational mission. The 
mass of substantive and procedural material binding upon private persons 
which is contained in Selective Service Regulations is generally similar in 
its governmental function to the substantive and procedural provisions issued 
by other federal agencies under other acts of Congress. In other words, 
Selective Service Regulations, like other agency regulations, represent an 
exercise of delegated rulemaking authority needed to implement the general 
terms, objectives and norms of a particular statute. Such implementing pro 
visions, issued by an agency to flesh out the scheme of a statute entrusted 
to its administration, have long been called "regulations" in federal usage ; 
Selective Service Regulations are consistent with that usage. It should be 
evident tbat regulations of the kinds just mentioned are generally, if not 
absolutely, quite distinct from the mass of internal agency communications 
(whether called bulletins, departmental orders, circular letters, staff memo- 
randums, etc.) by which the day-to-day operations of a federal agency 
must be coordinated and controlled, particularly if the agency has a sizable 
and far-flung field organization like that of the System. 

So much for the general historical and functional distinctions between 
the Regulations and the other materials involved. One further matter war- 
rants preliminary comment and clarification, namely, the precise nature of 
the question at hand. The question before me is not whether various internal 
System directives should be published or otherwise made available to the 
public once they are issued. In that regard I would assume the System fol- 
lows the requirements of law providing for the public availability of agency 
records to the extent such laws apply to the particular paper. 6 The question 
here is whether your agency can transmit to another part of the System 
any internal directive which is effective according to its terms and which 
may significantly impinge upon registrants, unless the directive has first 
been published as a contemplated directive for a period of 30 days before 
such transmittal. 

The implications of this question should be considered in weighing the 
answer to be given. If the answer is to be negative — that these internal 
directives cannot be effectively issued without pre-publication — then the pre- 
publication requirement presumably would cover, for example, an internal 
System instruction to suspend immediately certain inductions, a directive 
to request additional information from certain registrants, or presumably 
almost any internal order of importance to the operation of the System. 
This last seems fairly clear : since the System's entire existence is oriented 
toward the effects of its work upon registrants, any System activity of 
any importance is likely to have some significant impact upon registrants, 
even if only indirectly. 

If all internal directives of importance must be pre-published 30 days 
before they can go into effect, the System will apparently be forced to 
labor under a series of repeated obstacles in the conduct of its operations — 
obstacles consisting of delays of 30 days each at almost every separate 
step in such operations which may occasion some kind of order. Such a require- 
ment would seem unique; it is not imposed even upon those federal depart- 
ments and agencies that are wholly subject to the Administrative Procedure 
Act. Congress, however, has continued the System's exemption from most 
of the Administrative Procedure Act. Therefore, the pre-publication provi- 
sions of Section 13(b) should not be read expansively to impose upon 

5 See. e.g.. P.irt 1611, Duty to Register; Part 1613, Registration Procedures ; Part 
1622, Classification Rules and Principles: Part 1623, Classification Procedures; Part 
1624, Appearance before Local Board; Part 1625. Reopening Registrant's Classification; 
Part 1626. Appeal to Appeal Board; Part 1628, Physical Examination; Part 1631, 
Quotas and Calls. 

6 Cf. 5 U.S.C. 552. 



17 

the System a requirement far beyond what the Administrative Procedure 
Act would call for, and far more restrictive upon the System's ability to 
operate, unless the arguments for so reading Section 13(b) are very strong. 
In fact, the contrary is the case ; under accepted principles of statutory inter- 
pretation, the 30-day pre-publication requirement of Section 13(b) applies 
in general only to Selective Service Regulations. 

The statutory language is plain and unambiguous. Section 13(b) of the 
Act, prior to its amendment last September by Public Law 92-129, merely 
exempted the System from all parts of the Administrative Procedure Act 
except Section 3 thereof, the public information section. The statutory 
language here involved, an amendment to Section 13(b) added by Public 
Law 92-129, is as follows : 

(32) Section 13(b) is amended by adding at the end thereof the follow- 
ing: "Notwithstanding the foregoing sentence, no regulation issued under 
this Act shall become effective until the expiration of thirty days following 
the date on which such regulation has been published in the Federal Register. 
After the publication of any regulation and prior to the date on which such 
regulation becomes effective, any person shall be given an opportunity to 
submit his views to the Director on such regulation, but no formal hearing 
shall be required on any such regulation. The requirements of this subsec- 
tion may be waived by the President in the case of any regulation if he (1) 
determines that compliance with such requirements would materially impair 
the national defense, and (2) gives public notice to that effect at the 
time such regulation is issued." (Emphasis supplied.) 

This language is quite clear; the word "regulation" is used eight times; 
it is not conjoined even once with any other arguably similar or broader 
term: and this choice of words may be contrasted with Section 10(b) of 
the same statute, which has long provided and still provides that the 
President may prescribe the necessary "rules and regulations" to carry 
out the Act. 

If in the face of this clear statutory language recourse to the legislative 
history is thought necessary, it is to the same effect. The amendment in 
question was added on the Senate floor on June 17, 1972, and the only 
significant history is the Senate debate on the amendment. 7 During that 
debate. Senator Kennedy, who sponsored this amendment, agreed with Sen- 
ator Stennis that the amendment "is addressed * * * to regulations that 
the Director of Selective Service is authorized under this law to issue, 
and, of course, that means they must he issued with the approval of the 
President of the United States or his direct representative" (emphasis sup- 
plied). As hereinbefore noted, Selective Service Regulations at that time 
were generally issued by Executive Order, in contrast to the internal Sys- 
tem materials which the Director has long issued on his own authority. 
In a further exchange during the debate, both Senators agreed on some 
illustrations of these regulations, including regulations defining the scope 
of the conscientious objector classification in the light of Supreme Court 
decisions, regulations prescribing the relative status of particular age groups 
or classes of registrants under the lottery or random selection system, and 
regulations on deferment of registrants married after a certain date. Sen- 
ator Kennedy added that his amendment would cover "any regulations 
that are going to affect those who will be selected and those who will 
not * * * eligibility for being taken and * * * ineligibility * * *". Senator 
Mclntire, a cosponsor of the amendment, clearly recognized the distinction 
between Selective Service Regulations and LBM's, saying 

Another area which has troubled me is that after Selective Service regula- 
tions are issued, within a short period of time, the Selective Service Sys- 
tem's National Headquarters issues a local hoard memorandum which further 
explains the regulation and fills in some of the gaps. This is an important 



7 The Conference Report, House Report No. 02-433 of July 30, 1971, Is the only 
committee report referring to the amendment of Section 13(b), and it merely says, at 
page 29, that the House conferees accepted the amendment "in the interest of equity". 



18 

procedure to assure that the local boards are completely familiar with and 
understand how to implement these regulations. But the local board directives 
are not published in the Federal Register so that the people they affect 
are not aware of them except through their local board. Mr. President, if the 
regulations are published prior to their effective date, questions can be 
cleared up before the regulations are finalized so that the final form of the 
regulation may fill in some of the gaps and thereby preclude the need 
for such lengthy local board memorandums. (Emphasis supplied.) 

Senator Mclntire also noted that proposed changes in Selective Service 
Regulations receive lengthy review "within the executive branch", a state- 
ment which would be generally inapplicable to contemplated LBM's or other 
internal directives. The legislative history is thus highly persuasive that 
the Senate knew the difference between Selective Service Regulations and 
local board memorandums and chose to cover only the regulations in the 
amendment. 

The long-standing administrative practice which distinguishes between the 
types of material covered by the terms in question has already been alluded 
to. Documentation of this practice may be found in successive compilations 
covering almost three decades of Presidential documents published in Title 3, 
Code of Federal Regulations, which shows that numerous "Selective Service 
Regulations" have been issued by many Executive Orders over the years. 8 
All these executive orders are indexed in these compilations under the head- 
ing "Selective Service System", subheading "Regulations", but there is nothing 
in the indices to these compilations to suggest either that LBM's, LASD's 
and the like have been deemed to be within the quoted headings or that 
such internal materials represent a category warranting indexing along with, 
if not under, these headings. Further demonstration of the administrative 
distinction between the Regulations and other System materials is un- 
doubtedly available but is unnecessary : the statutory language, the legis- 
lative history, and the evidence of administrative practice noted above are 
more than sufficient to dispose of the question in its broad outlines. 

Nevertheless, to dispose of your question fully I should touch briefly upon 
a subsidiary problem that may arise, because my resolution of this sub- 
sidiary problem may seem to involve a partial exception to my main con- 
clusion. The problem is this : while agreeing generally with the conclusion 
that the pre-publication requirement in Section 13(b) applies only to Selec- 
tive Service Regulations and not to LBM's, LASD's and the like, a person 
might nevertheless assert that some particular LBM requires pre-publication 
because it really constitutes the equivalent of a regulation. 

The resolution of such a problem turns upon at least three factors. The 
System's own expert characterization of the document is entitled to sub- 
stantial weight. Second, the function of the document is obviously important: 
does it provide general rules of substance and procedure binding upon the 
public, or does it chiefly instruct System elements in how to do their jobs, 
perhaps explaining the meaning or illustrating the application of the regula- 
tions as necessary but without purporting to change them. This functional 
distinction cannot always be clear-cut, however, especially in an agency with 
as many regulations and internal guidance materials as the System; some 
blurring may be inevitable, more or less as there is some blurring between 
the function of statutes and of judicial decisions interpreting them. In the 
case of the System, the legislative history referred to above shows that the 
Senate recognized some limited blurring or overlapping (see. especially Sen- 
ator Mclntire's statement) but nevertheless chose to cover only the regula- 
tions. Accordingly, some functional overlapping of an internal document into 
matters that are generally within the function of regulations does not 
convert the document into a regulation. 

The third factor bearing upon a claim that a particular LBM is really 

8 There : are 5 such Executive Orders in the 1943-48 compilation; more than a dozen 
forth 6 53 compilation; at least 7 for 1954-58; 5 or more in 1959-63; and so 



19 

a regulation is the past treatment by the System of its specific subject- 
matter. Obviously, Congress should not be deemed to have contemplated, 
in amending Section 13(b) so as to provide for the pre-publication of the 
System's regulations, that material essentially the same as that previously 
issued as a regulation could henceforth be issued without pre-publication by 
the simple device of labelling it something other than a regulation. The test 
here is not whether the document should be deemed a regulation because 
of its function, a factor discussed above. Rather, the test here is whether 
the document should be deemed a regulation because its specific subject- 
matter was embodied in a System regulation in the past. An example of 
this would be the issuance as an LBM of a revised version of matter previ- 
ously set forth as a rgeulation which is being repealed. In such a case, the 
pre-publication requirement of Section 13(b) should in my view be com- 
plied with. 

Sincerely, 

Ralph E. Eeickson, 
Assistant Attorney General, 

Office of Legal Counsel. 

Mr. Take. Thank you. 

Senator Kennedy. I might just say, this is really a commendable 
effort on your part. You have indicated a number of the topics that 
have been highlighted in the Marshall Commission, topics that the 
Congress has acted upon, the recommendations of this committee and 
the recommendations of various other studies. It is extremely helpful 
to those of us who have been trying to make the system more fair 
and equitable to be able to review this. I want to commend you for 
this. 

Mr. Tare. I wish to discuss a few of the major problems that we 
encountered during the last 2 years in order to bridge the time span 
between the hearings of this committee in 1969 and the issues that 
we all face immediately. 

RANDOM SELECTION 

Although many of your witnesses in 1969 thought that random 
selection would cause only a superficial change in the System, in 
addition to the advantages it brought to registrants, it actually has 
caused a fundamental restructuring. Random selection has focused 
the conversation of our agency from a loosely coordinated collection 
of semi- autonomous local boards into a national system, providing 
visibility of the efficiency of each local board operation and the way 
in which registrants are treated. 

That conversion is not yet complete. Much remains to be done. 
But we have made a start that encourages me, and I think it will 
encourage others as these changes continue to unfold more com- 
pletely in the months ahead. Most of the initial steps nowhave been 
taken. We have launched a comprehensive program to inform all 
young people serving the System about their responsibilities. After 
more than a year of issuing instructions to the boards through com- 
prehensive local board memoranda and letters to State directors, 
we have initiated the publication of the "Registrant Processing 
Manual." The manual, as its foreword explains, will be a compilation 
of instructions required to implement the selective service law and 
regulations, and it will replace local board memoranda and other 
instructions which no longer will be issued. This guidance also be- 



20 

comes the basis for a training program, starting at National Head- 
quarters and working through each of the States, so that all com- 
pensated and uncompensated personnel will understand and be able 
to support national policies. 

Likewise we are printing materials to help registrants understand 
their responsibilities and rights. Since July 1970, we published over 
4 million pamphlets that have gone to local boards, schools, draft 
couonsellors, and churches on specific topics such as conscientious 
objection and hardship, as well as the general problems all young 
men face with the draft. About 250,000 of these were printed in 
Spanish. The amendments to the law have made these pamphlets 
obsolete, and new ones are being printed. We also have developed 
course materials for high school classes, we send a special newsletter 
to draft counsellors, and we have improved greatly our direct mail- 
ing to all of our compensated and uncompensated personnel. We 
continue to learn a great deal about what young people think from 
our youth advisory committees in each State. 

A national system requires accurate information on which to base 
decisions about manpower and in order to take corrective manage- 
ment action. To provide this, we have designed and procured data 
processing systems that now are in use. Information on new regis- 
trations and local board actions comes to national headquarters for 
optical scanning and storage on computer tape. From this we will 
soon be able to determine quickly the numbers of men available for 
call or deferred, and those awaiting examination or involved in 
procedural delays. The Director and State directors will know if 
boards are meeting, if men are being cared for promptly, if problems 
seem to be developing. The same equipment will process all personnel 
records, so that we can continue to appraise our recruitment of 
younger persons and women and minority people for our local and 
appeal boards and for positions as advisors to registrants. It will 
supply important information on compensated people, do the pay- 
roll recordkeeping, and also provide us with the cost accounting 
information we long have needed but could not assemble. 

Finally a national system depends upon regular and frequent 
human contact and supervision, recommended uniformly by those 
who have studied our problems in the past. I have appointed a group 
of 13 men who requested me in the field, travelling constantly to 
State headquarters and local boards. They evaluate the work that is 
being done at all levels in the System. If our printed instructions are 
not understandable, then these men inform us in national headquar- 
ters so that we can make corrections. When additional training is 
necessary, we supply it. If one State encounters difficulty managing 
its alternate service program, then we will provide assistance. Fur- 
thermore, each State has its own inspection group visitingr local 
boards constantly. Our national representatives will work with these 
insnectors to continue improvement of local operations. 

It still is too earlv to apprai.se the progress we have made. Funda- 
mentnl alterations rennire a great deal of time for accomplishment. 
But T believe that we have be<run the essential work to improve Selec- 
tive Service for n=? loner as we must be able to induct men. and to 
provide for an effective standby system thereafter. 



21 



LOCAL BOARDS 



Rather quickly I found that we faced a most difficult control prob- 
lem over our 4,100 local boards, operating in about 3,500 separate 
offices. Many of these were open only a portion of the week. But per- 
haps even worse, the offices in growing communities lacked sufficient 
staff because the System had concentrated too large a share of its 
compensated people in smaller operations. For instance, at one time 
during 1970. we maintained a office in the Rocky Mountain area with 
only one registrant in the prime selection pool — and he had a random 
selection number of about 270 — while we were 6 months behind on our 
correspondence in some of our East Coast offices. 

Senator Thukmoxd. Dr. Tarr, could you get your microphone a 
little bit closer to you ? I am not sure that the people can all hear you. 
Mr. Tarr. These personal imbalances were difficult enough. But even 
more discouraging was our inability to train part-time people. Many 
of them worked with so few registrants that they were not current on 
changes and had no awareness of the problems that daily involve the 
clerks in metropolitan boards. Misunderstandings caused procedural 
errors which led to erroneous inductions and prosecutions, both of 
which were unfortunate, costly to correct if they could be found, and 
grossly unfair to registrants. Meanwhile these inequities to regis- 
trants continued, both from overworked personnel on the one hand 
and uninformed personnel on the other. 

It became apparent to me that we must continue to rely upon the 
local board for a long time to come : as this committee has observed, 
any change in the basic structure of the System requires legislation. 
But we did have some latitude because we could collocate boards by 
offering administrative^ services to several boards in one office — such 
as metropolitan boards have done for years — and we could also con- 
solidate work into intercounty boards for up to five counties, such 
as we have done occasionally in some of the Western States. Either 
action would utilize our personnel more effectively, facilitate train- 
ing, open opportunities for promotion, and permit upgrading our 
most skilled people. The General Accounting Office had recommended 
collocation as early as 1966. We employed General Services Admin- 
istration personnel in 1970, skilled in this type of reorganization, to 
develop a national plan to reduce the number of local offices through 
collocation and consolidation. Our plan was announced early in 1971. 
But shortly after the announcement, I found myself at odds with 
many Members of Congress who for a variety of reasons opposed 
strenuouoslyany change in the structure of the System. That opposi- 
tion undermined the support we required for passage of our legis- 
lation, including two critical reforms: the power to phase out under- 
graduate student, deferments and to institute a uniform national call. 
Accordingly I agreed to cancel my national plan for consolidation 
and collocation of local boards, and to abide by the amendment to the 
bill that eventually passed. This compromise disappointed me. We 
had developed our plans carefully. Carrying them out would have 
provided us with the possibility for reform that now can onlv come 
much more slowly. 



22 

Fortunately the legislation permits us to undertake collocations 
and consolidations with the permission of the Governor. I have talked 
with a few Governors since then, and they see the wisdom of reducing 
the number of boards. We have taken some isolated actions recently, 
providing for improved service to registrants in the process. I have 
refrained from developing a national plan, according to my promise. 
But we must undertake these actions extensively when it becomes 
feasible to go to a standby status. 

Senator Kennedy. Just before going into the enforcement by the 
local boards, you mentioned the misunderstanding and procedural 
errors which lead to erroneous induction and prosecutions, both of 
which are costly to correct, if they can be found, and grossly unfair 
to registrants. Could you tell us what is being done to correct the 
errors ? 

(The following detailed response to Senator Kennedy's question 
was subsequently submitted by the Selective Service System:) 

There are three ways a real or alleged erroneous induction case may come to 
the attention of the Director of Selective Service: (a) detection by System per- 
sonnel attached to a local board, state headquarters or national headquarters : 
(b) complaint by the registrant; or (c) reference by a third party of a claimed 
irregularity. The ensuing investigation is primarily concerned with determining 
whether there were any procedural errors committed, whether the registrant was 
denied any of his rights under the law, and/or whether he was erroneously for- 
warded for induction. Findings thus developed are promptly transmitted to the 
inquiring authority. Adherence to procedures set forth in the attached memoran- 
dum relating to the processing of this type of case will expedite disposition of 
each claim. 

Recent changes have been made in the Selective Service System, however, to 
prevent procedural errors which lead to erroneous induction. 

(1) A computer system has been installed to detect errors and undue delays 
which may occur in the processing of the registrants. 

(2) A Management Evaluation Group has been organized and placed under 
the direct supervision of the Deputy Director. Its function is to investigate and 
report major irregularities found within the System and to recommend correc- 
tive solutions to these problems. 

(3) A general effort to uniformize operations system-wide has been under- 
taken. Specific programs involved in this effort include (a) a uniform filing sys- 
tem for all local boards (b) a national training plan for use with compensated 
and uncompensated employees at all levels of the System, and (c) the Registrant 
Processing Manual, designed to more clearly outline and thus uniformize local 
board work methods. 

In addition to the above national changes, each state director continues to 
closely supervise each of the local boards in his state through his area super- 
visors and state inspectors. These persons audit and inspect local boards and 
their records to ensure their compliance with the Military Selective Service Act 
and the instructions issued by the Director. 

To : Operations division personnel. 

From : Operations division manager. 

Subject : Processing of reported erroneous induction cases. 

This intra-division memorandum prescribes standard operating procedures to 
be followed in the expeditious processing of erroneous induction cases which are 
discovered at the local board, state headquarters or received from the armed 
forces. 

Speed is of the essence in processing alleged erroneous induction cases. The 
most expeditious means of determining the validity of the claim must be em- 
ployed. Accordingly, the procedures set out below will be followed. 

Alleged erroneous induction cases received at national headquarters from the 
armed forces are submitted by service personnel under paragraph 5-5b of Army 
Regulation (AR) 635-200. Subject regulation is quoted, in part, as follows: "An 



23 

individual claiming erroneous induction because of denial of a procedural right 
as provided by the Military Selective Service Act, may submit a requset for re- 
lease from custodv and control of the Army. All requests will be forwarded to 
commanders specified in section VI, chapter 2, and by them, to the Director, 
Selective Service System, Washington, D.C. 20435, for his recommendation. Upon 
return of a case from the Director of Selective Service, a commander specified 
in .section VI, chapter 2, will 

"a. Disapprove the reqeust for release when the individual was not denied a 
procedural right, or 

"b. Forward the request for release, tog-ether with the recommendation from 
the Director of Selective Service when the individual was denied a procedural 
right, to The Adjutant General, Department of the Army, 

Attn : AGPO-SS, Washington, D.C. 20315. . . ." 

If the matter is discovered at the local board level, the executive secretary 
will immediately telephone a report of the induction (including the regirtsaiit's 
social security number) and substantiating details of the state director who will 
then telephone at once to the Operations Division of National Headquarters. 

Personnel at National Headquarters will, immediately upon receipt of such 
information, (a) determine the registrant's current military address from the 
locator section of his branch of service and (b) telephone the registrant's com- 
manding officer advising that the man was erroneously forwarded for induction 
or of the possibility that he was erroneously forwarded for induction and request 
the commanding officer not to transfer the registrant to any other duty station 
until he receives a written recommendation by the Director of Selective Service 
in the matter. 

This telephone call to the military command will be confirmed at once by a tele- 
gram and letter. 

If evidence of erroneous induction is sufficiently conclusive to render unneces- 
sary the forwarding of the registrant's selective service file to national head- 
quarters for further review, the finding and recommendation for release from 
active duty under provisions of paragraph 5-5b of AR 635-200 will be set forth in 
a letter report by the state director to National Headquarters (attention: Op- 
erations Division). This communication must be prepared and mailed at once. 

If evidence is not sufficiently conclusive or a question exists as to the propriety 
of the induction, the registrant's selective service file will be forwarded to the 
Operations Division of National Headquarters for review. Comments by the state 
director and executive secretary will accompany the selective service file. Upon 
receipt of the above-described items, high priority will be given to a review and 
staffing of the formulated recommendation. The final decision thus reached will 
be telephoned to the appropriate military command and immediately confirmed 
by letter. 

A cony of the correspondence to the military command will be forwarded as an 
enclosure to the letter of transmittal which accompanies the return of the reg- 
istrant's selective service files to state headquarters. 

If the matter is discovered at the state level, the state director will immedi- 
ately telephone the executive secretary of the local board, obtain details con- 
cerning the processing and induction, then telephone such information, includ- 
ing the registrant's social security number, at once to the Operations Division 
at Notional Headquarters. Personnel at National Headquarters will proceed as 
prescribed under paragraph 3. a, above. 

If the registrant's claim of erroneous induction is received from the armed 
forces, the appropriate state director will be immediately contacted by telephone 
call from National Headquarters, advised of allegations made and requested to 
telephone to the executive secretary of the reentrant's local board for a review 
of the man's selective service file and for a telephone report of findings. Such re- 
port will, in turn, be immediately telephoned by the state director to the Opera- 
tions Division in National Headquarters with his findings and determination as 
to the validity of the claim. 

All letters from the Selective Service System to a branch of the armed forces 
which state that a registrant was erroneously forwarded for induction, will 
carrv a closing paragraph requesting that National Headquarters be advised, at 
an early date, as to whether the subject soldier was or was not discharged. Ad- 
ditionally, a suspense file will be established and regularly reviewed to insure 
receipt of that information. 



24 

There should be no delay in the processing of an obvious claim of an erroneous 
Induct ion case. 

The General Counsel at National Headquarters will be consulted by the Op- 
erations Division Manager before a final decision is made in every action which 
involves: (1) an application for release by reason of erroneous induction made 
by a private attorney, or (2) any application for release due to erroneous induc- 
tion, where it may appear that there is a question of legal interpretation. 

Mr. Tarr. Mr. Chairman, the most fundamental thing that we do 
is in our system of inspection. 

Senator Kennedy. Of what ? 

Mr. Tarr. In the last year, our inspectors have found errors such as 
the ones I described in the statement, and when we find these, then 
we do two things. First, we go to the Army and ask that these young 
men be given the opportunity to apply for a discharge immediately, 
and the Army has cooperated splendidly on this account. The second 
thing that we do is to try 

Senator Kennedy. How many cases are you talking about now? 

Mr. Tarr. I am sorrry, I cannot give you an answer. Mr. Chairman. 
I am not talking about hundreds. I may be talking about a dozen or 
so. I can recall three or four, but I am sorry I cannot give you the 
full information. 

(The following more detailed response to Senator Kennedy's ques- 
tion was subsequently submitted by the Selective Service System : ) 

Information on the number of requests the Selective Service System had made 
to release men erroneously inducted is not available. Records are maintained 
in regard to particular individuals but not by specific category. The number of 
erroneous inductions has not been a major problem as far as number of cases is 
concerned, but having one registrant illegally inducted is one too many. 

The second thing we do on this is that we orient our training pro- 
gram in these areps where the people who operate our local board 
offices obviously have made the error, and do not understand how 
they should have done it appropriately. And we have now traveling 
supervisors that did not exist previously, and they can come in and 
help these local board executive secretaries and clerks so that they 
understand what the requirements of the law and the regulations are. 

This, of course, does not rectify the fundamental problem of errors, 
because you have interrupted in a grossly unjust way, the life of a 
young man. 

Senator Kennedy. As you well remember, one of the recommenda- 
tions of the Marshall Commission was to have professional staff per- 
sonnel so that you would avoid some of the problems that you have 
found yourself. And the Selective Service System opposed that 
recommendation. That is obviously one of the things I think could 
have been substantially avoided if we had the professional personnel. 

Mr. Tarr. Mr. Chairman, I think that we could have improved it 
considerably if we could have continued our program for making 
each of the offices somewhat larger. But, the difficulty that we found 
is that when a person operates in an office with a very few registrants, 
and sometimes onlv on a part-time basis, it is verv difficult for these 
people to understand thoroughly all of the regulations and all of 
the directives that come out. 



25 

Senator Kennedy. Of course, it is complicated by the fact that 
you only make those regulations and rules available to the clerks, is 
that not right? You do not make those available to the members of 
the board, as I understand. 

Mr. Tarr. Well, Mr. Chairman, it is true that we have not decided 
to ask each local board member to maintain a Registrant's Processing 
Manual. 

Senator Kennedy. You have not even gone that far. You do not, 
as I understand, even send, and correct me if I am wrong, the new reg- 
ulations to the local board members. They get their information 
through the clerk. But, you do not send, as a matter of policy, either 
the regulations or the new law to the members of the board them- 
selves nor, for example, the committee report, which is very informa- 
tive in terms of explaining the new changes. 

Mr. Tarr. Mr. Chairman, I do not know what was done about the 
committee report, because this was before I came. But, let me say 

Senator Kennedy. Tell me what you do send, if anything, to the 
local board members ? 

Mr. Tarr. Mr. Chairman, we send very carefully prepared infor- 
mation on all changes that affect the system to every compensated and 
uncompensated person in the system. If you would care, I would be 
happy to provide for you the special mailings that we prepared for 
all of our uncompensated people and sent 

Senator Kennedy. Would you ? 

Mr. Tarr. Continuing. To them after the law was passed, and after 
our final regulations were published in December. Incidentally, these 
will also be included in my report to the Congress, so that any Mem- 
ber of Congress can scrutinize those. 

Senator Kennedy. Could you make available the information you 
send both to the local board members and to the clerk. 

Mr. Tarr. I would be very happy to. 

(The following more detailed response to Senator Kennedy's ques- 
tion was subsequently submitted by the Selective Service System:) 

The following items have been mailed to local boards since July 1. 1971 : 
Letters to All State Directors ; Selective Service News ; Directives Capsule and 
Press Releases. [Copies attached to this response are omitted from the record.] 

Senator Kennedy. Thank you. Let us go on to the enforcement. 
Mr. Tarr. All right, now enforcement. 



& v 



ENFORCEMENT 

One of the most difficult problems at the time of my appointment, 
and a continuing one. was that of enforcement. I understand that you 
have invited a representative of the Justice Department to appear 
here later in the^e hearings, and he will be much more competent 
than I to deal with the steps taken by Justice in the enforcement of 
the Military Selective Service Act. Perhaps I can supplement what 
the Justice Department representative will explain by describing our 
efforts to assist them. 

First we seek to perfect enforcement by improving our daily work 



26 

in the local board. We do this by training our people to give better 
service to registrants, to handle their problems in a thoughtful way, 
and to process their work according to regulations. We also inspect 
local boards to see that our personnel are following instructions, and 
we send out supervisors to help them better their work. 

Next, we found that many of the cases awaiting indictment or 
trial often contained procedural errors, or they involved actions by 
the registrant that already had been set aside by the courts. This was 
true particularly after the Gutknecht and Breen decisions in January 
of 1970. 

To inspect each of the files of registrants alleged to have violated 
the Selective Service Act, we called upon lawyers recruited from 
national and State headquarters and reserve judge advocate officers 
serving annual active duty tours. These men worked patiently with 
the case histories of thousands of registrants. The review of the files 
in turn gave assurance to the U.S. attorneys about the cases remain- 
ing for prosecution. Many files were returned to local boards, because 
they contained errors, inadequate documentation or evidence, and so 
that induction orders could be cancelled and the registrant be repro- 
cessed. If the registrant is under 26, he may be called again if his 
random selection number is reached. 

We now have appointed one or more lawyers in each of the six 
regions of the Nation. These men check one file before it is sent to 
the U.S. attorney for indictment. This, of course, is an important 
procedural change, because now we make certain that a registrant has 
committed a violation that meets all of the tests required by the 
courts before any action is taken in the judicial process. 

Senator Kennedy. Mr. Tarr, when was that enacted ? You state that 
we now appoint one or more lawyers in each of the regions, and we 
now make certain that a registrant has committed a violation. When 
did that process begin ? 

(The following detailed response to Senator Kennedy's question was 
subsequently submitted by the Selective Service System :) 

In early 1971, the Director of Selective Service approved the appointment 
of 13 Regional Counsels with one or more in each of the six Selective Service Re- 
gions. July 1, 1971, was the target date for the assignment of all Regional Coun- 
sels. However, all positions were not finally filled until December 1971. The names 
and locations with areas of responsibility of the Selective Service System Re- 
gional Counsels are attached. 



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28 

Mr. Tarr. Mr. Chairman, it has taken us about 6 months, I pre- 
sume, to make all of these appointments. The first of these men was 
appointed, I would think, in the Northeast, in Philadelphia, on about 
let us say, 9 months ago. We still are in the process of moving some 
people around, but we completed some staffing in each of our six area 
offices approximately 3 months ago. 

Thus we have sought not only to protect the rights of a registrant 
through training and inspection, but we also have set up a screen 
through which the case must pass before prosecution is begun. Our 
regional attorneys also serve as counsel for the States and local 
boards of the region. They have a rather full correspondence and 
telephone contact with draft counselors in the area as well. 

REGULATIONS 

Mr. Chairman, I know that this subcommittee is interested par- 
ticularly in the new regulations that we have published and are de- 
veloping, and the way in which we have complied with the require- 
ments of the new law to publish tentative regulations in the Federal 
Register for 30 days prior to the time they take effect. 

1. PREPUBLICATION 

We inserted our first proposed regulations in the Federal Register 
on November 3, 4, and 5, 1971, delayed somewhat until we could de- 
velop a reasonable procedure for prior circulation in the executive 
branch. Ultimately this problem was solved when the President 
signed Executive Order 11623 on October 12, 1971, giving the Direc- 
tor of Selective Service the authority to issue regulations of the kind 
previously issued by the President. The President required that such 
proposed regulations be sent to interested departments and agencies 
of the executive branch for 10 days of comment prior to prepublica- 
tion in the Federal Register. 

While this new procedure permits initiative that we could not 
formerly take, it introduces an obstacle that I did not anticipate. We 
have concluded that whenever we accept public suggestions for re- 
vision following our pre-publication in the Federal Register, we must 
send these to interested agencies and thereafter prepublish them 
again in the Federal Register. Accordingly the process can be ex- 
tended one any time the Director evaluates carefully the suggestions 
made from any source, and this I feel obligated to do. 

We received 83 letters and 19 identical petitions based upon our 
November prepublication, plus letters from Senators and Congress- 
men that usually contained copies of letters sent directly to us. I have 
tried to study and answer many of these letters myself, although we 
assembled a special task force to study thoroughly all of the com- 
ments received. 

Most of the prepublished regulations were published without 
change and in final form on December 9 and effective the following 
day, since either there had been no comment on them or else the 
comment did not seem relevant. On January 12, we republished those 



29 

portions of the November 3, 4, and 5 regulations upon which we had 
received comment and made revisions. These revisions have gone first 
to Federal agencies. We are now evaluating the 13 letters submitted 
on this second issuance of tentative regulations. 

On November 22, I received a thoughtful letter from 23 Senators, 
including some members of this subcommittee. One of the points 
made in that letter was that "regulations requiring prepublication 
include LBM's, guidelines such as those present in form 150, and all 
those directives that have significant impact on the registrants, in- 
cluding letters to state directors." Although I personally had fol- 
lowed the Senate debate closely on this matter and had read the 
conference report, I had not imagined such a sweeping interpretation 
would be appropriate for the word "regulations." 

My general counsel had advised me carefully on what he inter- 
preted the new law to require, and we had followed his advice pre- 
cisely. But the letter from Senators caused us to solicit the counsel of 
the Justice Department. In reply, the Justice Department advised us 
that "regulations" were intended by Congress to mean those docu- 
ments that always have been referred to by that term, but should we 
introduce general rules of substance and procedure binding on the 
public (rather than to repeat or explain them) in an occasional letter 
or memorandum we should, of course, prepublish the document. To 
avoid this latter situation, however, we intend only to use "regula- 
tions" as the method of rulemaking in the Selective Service System. 

Assistant Attorney General Erickson has provided us a letter of 
interpretation on this matter, and I would like to leave a copy with 
you for the record. I am thankful for this clarification which we 
intend to follow with care, understanding as Mr. Erickson does that 
"some blurring may be ineivtable." I would be happy to explore later 
with the committee the problems that would occur if all calls, notices 
of classes to be called for preinduction examinations, postponements, 
terminations of actions by boards awaiting instructions based upon 
court decisions or laws, and all illustrative material to System per- 
sonnel were to be prepublished for 30 days in the Federal Register. 

2. PROCEDURAL RIGHTS 

Although there are a number of minor complaints concerning the 
regulations which were prepublished in the "Federal Register," there 
are three important changes that I would like to discuss with the 
subcommittee. 

The first is the 15 days given to the registrant to indicate that he 
wishes to appear before his local or appeal board. At the present time, 
our regulations grant the registration 20 days to signify his intention 
to appeal or to appear before the local board. Our first prepublication 
of thisregulation was not worded accurately to reflect our intent, and 
accordingly we decided to republish it for comment, Furthermorp, 
the initial prepublication should have contained flexibility to handle 
the inevitable exigencies of communication but it did not: conse- 
quently a discretionary clause had to be added. The January 12 

80-620 — 72 3 



30 

prepnblication of this particular regulation, then, is the only one I 
would defend here. 

Senator Kennedy. I suppose that is a reasonable example of the 
importance of prepnblication, because with the prepublication of a 
regulation you gained some additional information that showed, how 
that could work a particular hardship of unreasonableness on regis- 
trants outside of the county and returning peace corps person and 
because of that, you put in a discretionary clause. 

Mr. Tare. Under random selection, we have sought to limit the ex- 
posure of a registrant to no longer than 12 months, and for most 
registrants this is the calendar year in which they reach age 20. If 
a man has been deferred and enters the pool following the start of 
the calendar year, then we attempt to complete his exposure before 
the following April. Thus we try to limit the time required to exer- 
cise procedural rights, while being careful that we do not inhibit 
equity in doing so. After we reviewed the entire appeals procedure 
following changes introduced by the new law, we decided that a sig- 
nificant increase in the traditional period required for procedural 
delays would not in itself enhance the opportunity for equity, except 
to extend from 10 to 30 days the period between the issuance of an 
induction order and the date when the man must report. Ten days 
did not permit a young man the time to place his personal affairs 
in order. Thus under our new procedures, delay for inductions has 
been extended by 20 days plus the time that will be required to ar- 
range personal appearances at the State appeal boards. 

Under the proposed procedures, it was necessary also that we pro- 
vide reasonable notice to the registrant when he should appear at a 
local or appeal board. Accordingly, we decided to divide the original 
30-day period into two 15-day periods, the first for registrants to 
signify their intentions about appeals and appearances, and the 
second for notice by the local board when the registrant should 
appear. Although this division of the 30-day period has been criti- 
cized, no one yet has made the case that it takes registrants that long 
to decide whether or not to appeal. The registrants I have talked 
with tell me that they can decide to appeal as soon as they learn 
that the local board has denied their claim. Some make the point 
that registrants in the future will think they still have 30 days 
instead of 15; this argument is not so valid when we recall that 
few registrants appealing now are likely to have appealed before. 

Senator Kennedy. As you well understand that is a controversial 
action that was taken by the Department. What is the basis for 
your authority of reduction in time? 

Mr. Tarr. I think, Mr. Chairman, that this is not a part of the 
law. It was obviously a time period created by regulations, and thus 
it is a matter that can be changed by regulations. 

(The following more detailed response to Senator Kennedy's ques- 
tion was subsequently submitted by the Selective Service System:) 

Following are the times provided for requesting personal appearances and 
appeals since 1948. All of these were authorized by Executive Orders of the 
President except the current (1972) ones. The President, by Executive Order 



31 

11623 of October 12, 1971, delegated authority to promulgate regulations to the 
Director of Selective Service which in turn issued the 1972 regulations. 

APPEAL PERIOD 

1. For personal appearance before local board : 

1948 : 10 days, could be extended. 
1951 : No extension of 10 days. 
1967 : 30 days, no extension. 
1972 : 15 days, could be extended. 

2. For appeal to appeal board : 

194S : 10, 30, 60 days depending on location of registrant vis-a-vis local 
board. 

1967 : 30 days, could be extended. 
1972 : 15 days, could be extended. 

3. For appeal to Presidential Appeal Board : 

1948 : 10 days, could be extended. 
1967 : 30 days, could be extended. 
1972 : 15 days, could be extended. 

Senator Kennedy. You see, as I understand it, you used to have 
30 days to file for an appeal and you have cut that in half. I do not 
know how the mails are, but it seems that you just cut the time to exer- 
cise these appeal procedures by half. I understand we are going to hear 
later this morning testimony on it, so I will not go into it. But, the 
Marshall Commission and other studies certainly supported a longer 
period of time. This certainly has been one of the proposed regulations 
which I think would work to the disadvantage of the people. But let 
us move ahead. 

Mr. Tarr. Could I make one point on that, Mr. Chairman ? 

Senator Kennedy/. Yes. 

Mr. Tarr. It is true that we have cut the time in half in which 
the young man might signify that he would like to appeal. But we 
have not reduced the time in which a man can prepare for his appeal, 
and of the two, I think the preparation for the appeal is much more 
important than the time in which he signifies he is going to appeal. 
And as I say, I would have been swayed by comment that in specific 
cases there were young men who went through a considerable anguish 
trying to determine whether they should appeal. But there are no 
burdens upon a young man to appeal. It does not prejudice his 
case in any way. And as I say, the young men with whom I have 
talked, and I try to make it my business to talk with young people, 
have not indicated that they have any difficulty determining whether, 
in fact, they should appeal. 
JNow, the time of preparation for an appeal is something quite 
different. I think it is important that people have this long in order 
to prepare, because if a man has not been able to convince his local 
board, he may wish to bring some evidence, or new light that the 
local board did not explore. And this he should have the time- 
to do. 

One other point that I would like to make, and that is that the 
30-day period was not extendable in the old regulations. The 15-day 
period in which young men might indicate a plea is extendable if 
the local board _ sees the conditions that warrant extension. Some 
people have criticized this and say yes, but local boards are arbitrary 
in this. I would only point to the fact that for the first time in the 



32 

history of the Selective Service System I am inspecting the activities 
of the local boards to see that, in fact, they are not capricious and 
arbitrary. And I would say we are not perfect, but we are trying 
to be better. 

Senator Kennedy. Of course, the second period of time would not 
do him much good if he had not indicated an appeal. 

Mr. Tarr. It will if he had. 

Senator Kennedy. If he has not, it would not help — what did it 
used to be for those outside of the country? 

Mr. Tarr. Sixty days. 

Senator Kennedy. Now what is it ? 

Mr. Tarr. It is 15 days extendable. 

Senator Gurney. What numbers are we talking about in these 
appeals? How many appeals did you have last year? 

Mr, Tarr. I am sorry, I cannot answer the question. What we are 
talking about here are personal appearances before local boards, and 
appeals to State appeal boards and to national appeal boards 
as well. 

As an indication, there are 2,000 appeals a year at the national 
level, and these involve only cases where there was a divided vote 
at the State level. 

So, we are talking about many thousands of cases. 

(The following more detailed response to Senator Gurney's question 
was subsequently submitted by the Selective Service System:) 

The appeals, by fiscal year, are : 

NUMBER OF APPEALS BY FISCAL YEAR 

Year Total Presidential State 

1349 -- - 6,996 

1950 2,267 

1951 32,701 

1952— - - 51,044 

1953... -. 53,246 

1954 48,438 

1955. 30,250 

1956 12,814 

1957 13,979 

1958 _ 10,571 

1959 8,036 

1960 _ 6,427 

1961 6,011 

1962 8,558 

1963 7,410 

1964 9,579 

1965 9,904 

1966 -- 50,516 

1967 _. 121,342 

1968 120,006 

1969 --- 168,138 

1970 — 136,256 

1971. ~- - 95,553 



67 


6,929 


35 


2,232 


778 


31,923 


1,755 


49, 289 


2,123 


51,123 


2,369 


46. 069 


885 


29,365 


408 


12,406 


400 


13.579 


170 


10,401 


205 


7,831 


171 


6,256 


139 


5,872 


224 


8,334 


179 


7,231 


205 


9,374 


163 


9.741 


798 


49,718 


2,175 


119,167 


2,171 


117,835 


3,084 


165, 054 


2,286 


133,970 


1,763 


93,790 



Total 1,010,042 22,553 987,489 



Senator Gtjrney. I wonder if you could furnish that for the 
record? Would you? 
Mr. Tarr. All right. 
Senator Kennedy. You can go ahead. 



33 

Mr. Tarr. Second, some have disputed the proposed regulation that 
concerns the 15-minute time limitation on personal appearances at 
local boards, the lack of the same time limit at State appeal boards, 
and once again the 15-minute limit at the Presidential board. Al- 
though it would have been more convenient to omit a time limit from 
the regulations, we decided that we must set a reasonable standard 
for the local beard to insure the rights both of registrants and board 
members. The registrant must have the opporunity to be heard, while 
the board must have some protection against the registrant who 
wants only to harass. The 15-minute time was the best compromise 
we could reach. The Justice Department advised that we not impose 
this limit at the State board, while members of the Presidential board 
asked that we include it for them. 

Senator Kexxedy. Why is that ? Now, you have a difference ob- 
viously when the Justice Department says not to establish the time 
and the Selective Service does. Can you tell us why? What was the 
reasoning behind the Justice Department? 

Mr. Take. I do not know. Mr. Chairman. 

Senator Kexxedy. Would your counsel? 

Mr. Morse. Mr. Chairman, I think the reason was that since an 
appeal before the State appeal board was an appellate right, there 
should not be a limit on the time allowed for the registrant. As to 
what the feeling of the presidential appeal board was as to why 
it felt it should limit the time. I do not know. That was a decision 
of the board. But we followed the advice of the Justice Department 
on the appellate rights. 

(The following more detailed response to Senator Kennedy's ques- 
tion was subsequently submitted by the Selective Service System:) 

Attorneys for the Department of Justice expressed the view that members of 
state appeal boards were likely to be more experienced than members of local 
boards and thus should be given greater discretion in the conduct of personal ap- 
pearances. Further, the personal appearance before the state appeal board would 
be appellate in character and the issues presumably would be more clearly de- 
fined. Thus, the registrant would likely receive a fair hearing without the neces- 
sity of a suggested minimum period of time. 

The National Appeal Board requested that a 15 minute time rule be placed 
in regulations to facilitate the administration of its responsibility in conduct- 
ing personal appearances. It was felt that extensive screening of the regis- 
trant's case had been done at the local board and state appeal board levels, 
and that therefore the issues were clearly defined by the time a case reached the 
National Appeal Board level. It should be emphasized that when circumstances 
dictate, the National Appeal Board may extend the time period of the hearing 
beyond the 15 minutes. For these reasons the National Appeal Board requested 
this time rule. Because it is an independent body not within the full span of 
my control. I acceeded to the request believing that the distinguished men 
serving on that board are fully capable of judging how they can best be fair 
to all registrants while at the same time handling their enormous caseload. 

Senator Kexxedy. You followed their advice? So, you do not have 
the time limitation? 

Mr. Morse. That is correct, to the State appeal board. 

Senator Kexxedy. But you have it at the local level? 

Mr. Morse. Correct. They did not say it was not correct at the level 
to have a limitation. 



34 

Senator Kennedy. What was your feeling about an appropriate 
period of time for representing appellant procedures at the local 
level ? Is 15 minutes sufficient time ? 

Mr. Morse. We felt it was sufficient; 15 minutes at the local level. 
As I say, the Justice Department took no exception to that, but 
they did feel it should be open-ended at the appellant level. 

Mr. Tarr. Mr. Chairman, I would point out only that obviously 
the local board can extend the time if they wish. One of the problems, 
obviously, that we face here 

Senator Kennedy. Do you have some regulations on that? Do you 
have how they can extend the time, and how they are going to be 
guided, and would you make that available ? 

Mr. Tarr. Yes. One of the things that we do face at the local 
board is that if we set a longer time, a registrant could demand 
that a longer time be spent with him, whether he was actually 
pursuing his plea or not. And we felt that we must set some kind 
of time that would be practical, and that prudent local board mem- 
bers could extend if they felt that the man had something that 
he did not explore in the time that he had. 

(The following more detailed response to Senator Kennedy's ques- 
tion was subsequently submitted by the Selective Service System:) 

Chapters 626 and 627 of the Registrants Processing Manual contain instruc- 
tions to local and appeal boards on how to extend the fifteen-day time period to 
registrants making an appeal. The pertinent pages of the documents are 626-3, 
627-2 and 627-3. 

Chapter 626 — Appeal to the Appeal Board 

Section 626.1 

WHO MAY APPEAL 

1. The Director of Selective Service, the State Director of Selective Service 
of the local board of jurisdiction, or the State Director of Selective Service 
of the state where the local board which classified the registrant is located, 
may appeal from any classification action of a local board at any time prior to 
the induction of the registrant, or his reporting for alternate service. 

2. The registrant may appeal to an appeal board within prescribed time limits, 
from any classification given to him by local board action. An initial adminis- 
trative classification into Class 1-H cannot be appealed. 

Section 626.2 

TIME LIMIT WITHIN WHICH REGISTRANT MAY APPEAL 

1. The registrant must file his appeal (and his request for a personal appear- 
ance before the appeal board, if a personal appearance is desired) within 15 
days after the date the local board mails to him a Notice of Classification (SSS 
Form 110). 

2. Any time prior to the date the local board mails to the registrant an Order 
to Report for Induction (SSS Form 252) or Selection for Alternate Service 
(SSS Form 155), the local board will permit him to appeal even though the 

period for taking an appeal has elapsed, if the local board is satisfied that 
his failure to appeal within 15 days was due to some cause beyond his control. 
When the local board grants an extension of time to appeal to the registrant, he 
may within the extended period also request a personal appearance before 
the appeal board. When the local board grants an extension of time, an entry 
will be made on page 2 of the Registrant File Folder (SSS Form 101), or 
page 8 of the Classification Questionnaire (SSS Form 100). 



35 

Section G26.3 

PKOCEDUKE FOR TAKING AN APPEAL 

1. Any person entitled to do so may appeal to the appeal board by filing with 
the local board a written notice of appeal. If the Director of Selective Service or 
the State Director of Selective Service appeals to the appeal board he shall place 
in the registrant's file a written statement of his reasons for taking such appeal. 

2. Whenever an appeal is taken from a local board's classification by the Di- 
rector of Selective Service or the State Director of Selective Service, the local 
board shall notify the registrant in writing of the action, the reasons therefor, 
and inform him that (1) his appeal will be considered by the appeal board for 
the area in which his local board is located unless he files, within 15 days from 
the date on the letter of notification, a written request with the local board that 
the appeal be considered by the appeal board having jurisdiction over the area in 
which is located his principal place of employment or residence, and (2) he may 
request a personal appearance before the appeal board if he files with the local 
board within 15 days from the date on the letter of notification a written request 
for such personal appearance. The 15-day period may be extended by the local 
board when it is satisfied that the registrant's failure to file a written request 
within such period was due to some cause beyond his control. 

3. If the Director or state director has the registrant's file folder in his pos- 
session when the appeal is taken, he shall return the file folder to the local board 
(when tbe file folder is in the possession of the Director, it shall be returned 
through the state director) with a notice in writing that the appeal is being taken 
and the identification of the appeal board to which the appeal is being taken. If 
the Director or state director does not specify which appeal board the appeal 
shall go to, it shall be sent to the appeal board having jurisdiction over the area 
in which the registrant's local board of jurisdiction is located. 

4. If the registrant is taking the appeal, he may also request an opportunity 
to appear in person before the appeal board and that the appeal be considered by 
the appeal board having jurisdiction over the area in which is located his prin- 
cipal place of employment or residence. The notice of appeal need not be in any 
particular form, but must include the name of the registrant and his request. 
Any notice shall be liberally construed so as to permit the appeal. 

5. The appeal board for the area in which the registrant's local board is lo- 
cated shall consider the appeal of the registrant's classification unless the regis- 
trant has timely filed with his local board a written request that the appeal be 
considered by the appeal board having jurisdiction over the area in which is 
located his principal place of employment or residence. 

6. The registrant may attach to his appeal a statement specifying the reasons 
he believes the classification inappropriate, directing attention to any informa- 
tion in his file which he believes received inadequate consideration, and setting 
out more fully any information which was submitted. 

7. Prior to forwarding the registrant's file folder through the state director 
to the appeal board, the local board secretary will prepae the file and complete 
the pocedures required for taking an appeal, to include the following : 

(a) Issuance of Individual Appeal Record (SSS Form 120) to the registrant. 
When the appeal has been taken by the Director or state director, the reasons 
for taking the appeal will be stated in writing and attached to the SSS Form 120. 

(b) Insertion of the reasons for taking an appeal in the registrant's file 
folder, if it was taken by the Director or the state director. 

(c) Insuring that all documents in the registrant's file folder are arranged in 
chronological sequence, latest on top, except that the Registrant Questionnaire 
( SSS Form 100) shall always be the top document. 

< d) Insuring that the registrant's file folder does not contain information which 
has not been reviewed by the local board. If any such information is present, 
it shall be considered by the local board, and if the local board does not reopen 
the registrant's classification, the file shall be sent to the appeal board. 

(e) Insuring that the period for taking an appeal or requesting a personal 
appearance has expired. 

(/) Insuring that an entry has been made on page 2 of the registrant's file 
folder, or page 8 of the classification questionnaire indicating the date of mailing 
the file to the state director for forwarding to the appeal board. 



36 

Section 626.4 

REVIEW BY APPEAL BOARD 

1. The appeal board shall consider appeals in the order of the registrant's 
vulnerability for induction or alternate service. 

2. Upon receipt of the registrant's file folder, the appeal board shall cheek to 
see whether the registrant has requested a personal appearance before the appeal 
board. If no request for a personal appearance has been made, the appeal board 
may classify the registrant after 15 days have expired from the date of receipt 
of the registrant's file. 

3. If a registrant has requested a personal appearance before the appeal board. 
the appeal board will notify the registrant of the date, time and place of his 
scheduled appearance and will mail him such notification at least 15 days prior 
to the scheduled appearance. 

4. Should the registrant fail to appear as scheduled, except for good cause he 
establishes to the satisfaction of the appeal board, he shall not be given an op- 
portunity to appear at a later meeting. The registrant must file a written state- 
ment of the reasons for his failure to appear at his scneduled meeting within 
five days after such failure, or the registrant will be deemed to have waived his 
right to an opportunity to appear at a later meeting. The 5-day period may be 
extended by the appeal board when it is satisfied that the registrant's failure to 
file a written statement within such period was due to some cause beyond his 
control. In any event, the appeal board shall not classify the registrant at the 
meeting at which the registrant failed to appear, unless the registrant had with- 
drawn his request to appear. 

5. The registrant is entitled to such time for his personal appearance as the 
appeal board determines is reasonably necessary for the fair presentation of the 
claim. No registrant may be represented before the appeal board by anyone act- 
ing as attorney or legal counsel. The registrant shall not be entitled to present 
witnesses. If the registrant does not speak English adequately, he may appear 
with a person to act as an interpreter. Recording devices will not be utilized dur- 
ing any personal appearance before the appeal board. 

6. At any personal appearance the registrant may : 
(a) Present evidence. 

(6) Discuss his classification. 

(c) Point out the class or classes in which he thinks he should have been 
placed. 

(d) May direct attention to any information in his file which he believes the 
local board has overlooked or to which he believes it has not given sufficient 
weight. 

(e) May furnish further information which he believes will assist the appeal 
board in determining his proper classification. Such information shall be in writ- 
ing or if oral, shall be summarized in writing by the registrant and placed in his 
file. Such information shall be as concise as possible under the circumstances. A 
summary of the personal appearance may also be placed in the registrant's file 
folder by the board. 

7. During a registrant's personal appearance there shall be present a quorum 
of the members of the appeal board, or appropriate panel of the appeal board, and 
only those members of the appeal board before whom the registrant apnea red 
shall classify him. Classification of the registrant by the appeal board may take 
place after one of the following has occurred : 

(a) He has appeared before the board. 
(6) He withdrew his request to appear. 

(c) He waived his right to an opportunity to appear. 

(d) He failed to appear, without establishing to the satisfaction of the appeal 
board good cause therefor. 

8. In reviewing the appeal and classifying the registrant, the appeal board 
shall consider the various classes in the order specified in Chapter 623. The 
appeal board shall not receive or consider any information other than the 
following : 

(a) Information contained in the registrant's file folder as received from the 
local board. 

Cb) General information concerning economic, industrial, and social condi- 
tions. 



37 

(c) Oral statements by the registrant and written evidence submitted by bim 
to tbe appeal board during his personal appearance. 

9. After classifying the registrant, the appeal board shall prepare the Action 
by Appeal Board (SSS Form 120A). In the event that the appeal board classifies 
the registrant in a class other than that which he requested, it shall record its 
reasons on a Report of Information (SSS Form 110) which shall be signed by a 
member of the appeal board who was present at the meeting at which the reg- 
istrant was classified, and this shall be filed in the registrant's file folder. The 
appeal board shall enclose SSS Form 120A in the registrant's file folder, make 
entries on the Docket Book of Appeal Board (SSS Form 121) indicating the 
determination, and transmit the registrant's file folder through the appropriate 
State Director of Selective Service to the local board. 

Section 626.5 

PROCEDURE OF LOCAL BOARD FOLLOWING ACTION BY APPEAL BOARD 

1. "When the registrant's file folder is received by the local board, it shall : 
( a i Complete and mail SSS Form 110 to the registrant, together with written 
notification of the appeal board's reasons for the classification, if the registrant 
was classified in a class other than that which he had suggested. Send copy of 
SSS Form 110 to the Data Processing Center. 

(b) Enter on the Classification Record (SSS Form 102) and the Registrant 
File Folder (SSS Form 101) or the Classification Questionnaire (SSS Form 100) 
the classification granted by the appeal board and the date of classification. 

(c) Enter date of mailing of SSS Form 110 on the registrant file folder or the 
classification questionnaire. 

( (J ) Enter the classification action on the Minutes of Local Board Meeting 
( SSS Form 112) of the next local board meeting. 

Section 626.7 

APPEAL STAYS INDUCTION AND ALTERNATE SERVICE 

1. The local board shall not issue an order to report for induction, a selection 
for alternate service, or an order to report for alternate service either during 
•the period afforded the registrant to take an appeal to the appeal board or 
during the period such an appeal is pending. Any such form which has been 
issued either of those periods shall be canceled by the local board. Upon cancella- 
tion, the registrant will be notified in writing, and a copy of the cancellation 
will be placed in his file folder and noted on page 2 of the file folder, or page 8 
of the classification questionnaire. 

Chapter 627 — Appeal to the President 

Section 627.1 

persons who may appeal to the president 

1. The Director of Selective Service, the State Director of Selective Service of 
the state where the local board which classified the registrant is located, or the 
State Director of Selective Service of the state where the appeal board which 
classified the registrant is located, may appeal to the President from any deter- 
mination of an appeal board at any time prior to the induction of the registrant, 
or his reporting for alternate service. 

2. When a registrant has been classified by the appeal board and one or more 
members of the appeal board dissented from that classification, he may appeal to 
the President and request a personal appearance before the National Selective 
Service Appeal Board within 15 days after the mailing by the local board of the 
Notice of Classification (SSS Form 110) notifying him of his classification by 
the appeal board. The local board may permit any registrant who is entitled to 
appeal to the President under this section to do so at any time prior to the date 
the local board issues to him an Order to Report for Induction (SSS Form 252) 
or an Order to Report for Alternate Service (SSS Form 153), even though the 
period of taking such an appeal has elapsed, if it is satisfied that his failure to 
appeal within such period was due to some cause beyond his control. 



38 

Section 627.2 

PROCEDURE FOR TAKING AN APPEAL TO THE PRESIDENT 

1. Any person entitled to do so may appeal to the President by filing with the 
local board a written notice of appeal. This notice need not be in any particular 
form but must identify the registrant and indicate that the classification is being 
appealed to the President. If the Director or a state director appeals, he shall 
place in the registrant's file folder a written statement of his reasons for taking 
the appeal. A copy of the notice of appeal shall be furnished to the state director 
for the state where the appeal board which classified the registrant is located. 

2. If the Director or state director has the registrant's file folder in his posses- 
sion when the appeal is taken, he shall return the file folder to the local board 
(when the file folder is in the possession of the Director, it shall be returned 
through the state director) with a notice in writing that the appeal is being 
taken. 

Section 627.3 

PROCEDURE ON APPEAL TO THE PRESIDENT 

1. Whenever the Director or the state director appeals to the President, the 
registrant shall be informed on SSS Form 120 that if he desires to appear before 
the National Selective Service Appeal Board (National Board) he must within 
15 days from the date on the SSS Form 120 request an appearance in writing, 
addressed to his local board. The 15-day period may be extended by the local 
board when it is satisfied that the registrant's failure to request an appearance 
within that period was due to some cause beyond his control. The local board 
shall promptly notify the National Board of the registrant's request to appear 
before it. The local board shall then forward the entire file to the State Director 
of Selective Service, placing copies of SSS Form 120 in the registrant's file. The 
local board shall enter on page 2 of the Registrant File Folder (SSS Form 101) 
or page 8 of the Classification Questionnaire (SSS Form 100) the date the file 
Is forwarded. 

2. If the registrant is taking the appeal, he may at the same time file a written 
request with the local board to appear before the National Board. This request 
shall be placed in the registrant's file and acknowledged prior to being forwarded. 

3. When the registrant's file is received by the state director for forwarding 
to the President, the state director shall check the file to be sure that all pro- 
cedural requirements have been properly complied with, including the issuance of 
SSS Form 120 confirming such an appeal has been taken. If he discovers any 
procedural error, he shall return the file to the local board for corrective action. 
When any information has been placed in the file which was not considered by 
the local board in making the classification from which the appeal to the Presi- 
dent is taken, the state director shall review such information. When in his 
opinion, the information, if true, would justify a different classification of the 
registrant, he shall return the file to the local board with a request that the 
local board reopen and classify the registrant anew. 

4. When the state director has complied with the provisions of the preceding 
paragraph he shall, unless the file is returned to the local board, forward the 
file to the Director of Selective Service : Attention : NSSAB. 

5. If an appeal is withdrawn by the Director or state director, the registrant 
will be informed in writing. If an appeal or request for a personal appearance 
is withdrawn by the registrant, his withdrawal will be acknowledged. 

Section 627.4 

PROCEDURES OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD 

1. An appeal to the President is determined by the National Selective Service 
Appeal Board (National Board). 

2. The National Board shall classify any registrant who has not requested a 
personal appearance after the specified time in which to request a personal ap- 
pearance has expired. 

3. Not less than 15 days in advance of the meeting at which his classification 
will be considered, the National Board shall inform any registrant who has re- 
quested a personal appearance that he may appear at such meeting and present 



39 

evidence, other than witnesses, bearing on his classification. Should the registrant 
fail to appear at the scheduled meeting (except for good cause he establishes to 
the satisfaction of the National Board), he shall not be granted an opportunity to 
appear at a later meeting. The registrant must file a written statement of the 
reasons for his failure o appear at his scheduled meeting within five days after 
such failure, or he will be deemed to have waived his right to an opportunity to 
appear at a later meeting. If he establishes to the satisfaction of the National 
Board that he has good cause for not appearing on the date originally scheduled, 
he shall be scheduled to appear at a later date. His five-day period may be ex- 
tended by the National Board when it is satisfied that his failure to file a written 
statement within such period was due to some cause beyond the registrant's 
control. 

4. The registrant is entitled to fifteen minutes for his personal appearance. The 
National Board may, in its discretion, extend the time of the registrant's personal 
appearance. A registrant cannot be represented before the National Board by 
anyone acting as attorney or legal counsel. The registrant shall not be entitled to 
present witnesses. If the registrant does not speak English adequately, he may 
appear with a person to act as an interpreter. Recording devices will not be 
utilized during any personal appearance before the National Board. 

5. At any such appearance, the registrant may discuss his classification, may 
point out the class or classes in which he thinks he should have been placed, and 
may direct attention to any information in his file which he believes the local 
board has overlooked or to which he believes it has not given sufficient weight. 
At the time the registrant requests a personal appearance he may furnish such 
further information as he believes will assist the National Board in determining 
his proper classification. 

6. The National Board shall classify a registrant who has requested a personal 
appearance after (a) he has appeared before the National Board, (b) he withdrew 
his request to appear, (c) he waived his right to an opportunity to appear, or (d) 
he failed to appear without establishing good cause to the satisfaction of the 
National Board. When a registrant appears before the National Board, only those 
members of the Board before whom the registrant appeared shall classify him. 
Classifications will be determined by a quorum of the National Board or appropri- 
ate panel of the National Board. 

7. In reviewing the appeal and classifying the registrant, the National Board 
shall not receive or consider any information other than the following: 

(a) Information contained in the registrant's file folder received from the 
local board ; 

(Z>) General information concerning economic, industrial and social condi- 
tions ; and 

(c) Oral statements by the registrant and written evidence submitted by him to 
the National Board during his personal appearance. Oral statements by the 
registrant shall be summarized in writing by him and submitted for inclusion 
in his file folder. A summary of the personal appearance may also be placed 
in the registrant's file folder by the Board. 

8. In the event that the National Board classifies the registrant in a class other 
than that which he requested, it shall record its reasons in his file. Upon the 
receipt by the local board of a written request from the registrant within 30 
days following the mailing of a Notice of Classification (SSS Form 110), the 
local board shall furnish to the registrant a brief statement of the reasons 
for the decision of the National Board. 

Section 627.5 

FILE TO BE RETURNED AFTER APPEAL TO THE PRESIDENT IS DECIDED 

When the appeal to the President has been decided, Minutes of Action Upon 
Appeal to the President completed, and the Docket Book entries recorded, the 
file shall be returned to the local board through the appropriate State Director 
of Selective Service. 

Section 627.6 

PROCEDURE OF LOCAL BOARD AFTER FILE IS RETURNED 

When the file of the registrant is received by the local board, it shall : 

(1) mail an SSS Form 110 to the registrant, and 

(2) enter on the Classification Record (SSS Form 102), on the Minutes of 



40 

Local Board Meeting (SSS Form 112) and on page 2 of the Registrant File 
Folder (SSS Form 101) or page 8 of the Classification Questionnaire (SSS Form 
100) the classification given the registrant by the National Board. Also enter 
the date of mailing of the SSS Form 110 on page 2 of the Registrant File Folder 
or page 8 of the Classification Questionnaire. 

Section 627.7 

APPEAL TO THE PRESIDENT STAYS INDUCTION OR ORDER FOR ALTERNATE SERVICE 

The local board shall not issue a registrant an Order to Report for Induction 
(SSS Form 252), a Selection for Alternate Service (SSS Form 155), or an Order 
to Report for Alternate Service (SSS Form 153) during the period afforded the 
registrant to take an appeal to the President or during the period his appeal 
is pending. Any such form which has been issued during either of those periods 
shall be canceled by the local board, and the registrant will be notified in writing 
of the cancellation. A copy of the cancellation will be placed in his file folder and 
an entry made on page 2 of the Registrant File Folder or page 8 of the Classifi- 
cation Questionnaire. 

Senator Kennedy. I suppose you could frame it in such a way 
that they have a minimum amount of time. 

Mr. Tarr. That is what it is. 

Senator Kennedy. It is not a time limitation ? 

Mr. Tarr. A minimum. 

Senator Kennedy. He is entitled to it. He is not entitled to any 
more unless they waive it, isn't that it, the time he is allowed? 

Mr. Tarr. That is right, but the board can extend it. There is 
nothing, obviously, that says that the board can talk to him only for 
15 minutes. 

Senator Kennedy. And in that time he presents his witnesses, 
does he ? 

Mr. Tarr. Yes. 

Senator Kennedy'. And makes representations himself, files what- 
ever reviews, and information, and material that he has brought 
with him, OK. 

Mr. Tarr. Finally, there is a question over the application of the 
Mvlloy case to reopening. Mulloy wns a Kentucky registrant who 
presented a claim for conscientious objection after his local board 
had classified him 1-A. His board heard his plea but later voted not 
to reopen his classification which would have granted him rights of 
appeal. The Supreme Court studied the Selective Service regulation 
that stated : 

The local board may reopen and consider anew the classification of a regis- 
trant . . . upon the written request of the registrant ... if such request 
is accompanied by written information presenting facts not considered when 
the registrant was classified, which, if true, would justify a change in the 
registrant's classification. . . . 

It concluded that the local board should have reopened the classi- 
fication, had in fact done so when it considered the man's claim, 
and thus could not bar him from procedural rights. 

Our prepublished regulation alters the words of the former regu- 
lation, stating that the local board "will reopen" rather than "may 
reopen" in order to eliminate any confusion about the requirement 
placed on local boards. It also substitutes "in the opinion of the local 
board" for "if true." Some critics have attributed this latter change 



41 

to a willful intent on our part to undermine the Mulloy decision. This 
is not so. Rather it is the result of my own concern over how the 
local board can applv the words "if true" to pleas for hardship 
and conscientious objection wherein very few of the allegations can 
be shown to be "true." The original regulation related most often 
to claims for occupational and educational deferments. Now deci- 
sions usually involve judgment rather than facts that can be proven 
true, and this judgment is the responsibility of the local board. What 
we meant was that in cases where the registrant's plea would warrant 
reclassification if the board considered the plea valid, then the actual 
process of weighing evidence brought by the registrant constitutes 
reopening. We" still may have a problem of language, but we do 
not intend to circumvent a Supreme Court decision. 

3. CONSCIENTIOUS OBJECTION 

In the area of conscientious objection, there are three regulations 
disputed by those who represent organization concerned about con- 
scientious objection, as well as the form on which the registrant 
makes his plea, the form 150. 

The first issue relates to post-induction notice claims for con^ 
scientious objection. Our prepublished regulations now permit the 
local board to reopen a registrant's classification during a long 
postponement, but otherwise they prohibit the local board from doing 
so after a man has received his order to report for induction unless 
the circumstances are beyond the registrant's control. This prohibi- 
tion was upheld by the Supreme Court in the Ehlert case involving 
a claim for conscientious objection, decided in April 1971. 

Some draft counsellors want us to change this regulation to permit 
the local board to examine a claim by reopening, and thereby giving 
the registrant his rights of appeal, at any time up to the moment 
of induction. The Senate agreed upon this position for conscientious 
objection, in its bill that went to conference. The House, you will 
recall, did not agree. The language of the conference report states 
that "the Senate receded with the understanding that in unusual 
cases, local boards would have the discretionary authority of ex- 
tending to such registrants a hearing on their late claims if the 
circumstances so warranted." 

Senator Kennedy. Now, do your regulations take that into con- 
sideration? I do not think that they do, if the circumstances so 
warranted. That is an exact quote from it. 

Mr. Tarr. I took it from the committee report. 

Senator Kennedy. The quote is correct, but do the regulations 
point that out? Yon are exactly right in terms of quoting the con- 
ference. I am not sure your regulations make that proviso. Do 
they ? 

Mr. Tarr. Mr. Chairman, what the regulations do say is that in a 
long postponement, and I do not know how much detail you would 
want to go info as to what constitutes a long postponement, but in 
the case of a boy. for instance, who is inducted and his induction 
is postponed to serve in the Peace Corps, or in the case of a young 



42 

man who has a postponement in order to finish a semester or term 
in college, then 40 days before his induction he is able to bring to 
the board new evidence, and the board must reopen. 

Senator Kennedy. Have you got the regulations in section E there? 
Have you got it right there in front of you on page 481? 

Mr. Take. "Provided, that in the event of paragraph (d) or (e) 
of this section of the classification." Now, Mr. Chairman, (d) is upon 
written request of the registrant. 

Senator Kennedy. Yes. 

Mr. Tare. And (e) is upon the motion of the board itself. "Pro- 
vided, that in the event of paragraph (d) and (e) of this section the 
classification of a registrant shall not be reopened after the local 
board has mailed to such registrant an order for induction or alter- 
nate service or, in the event that the order to report for induction 
or alternate service was postponed and a subsequent letter from the 
local board establishes the dates for induction or for reporting for 
alternate service, unless the local board first specifically finds that 
there has been a change in the registrants status relating from cir- 
cumstances over which the registrant has no control." Now, there is 
another regulation that governs the setting of times in a long post- 
ponement for induction, but the effect of these two coupled together 
is that in a long postponement, the local board must reopen, if the 
registrant brings new information according to the Mulloy decision, 
and that if he brings it more than 40 days before the date of his 
induction set by the local board. 

Senator Kennedy. The only point here, and we really had better 
move on, is that as I understand the report language, it does not talk 
about late claims, it talks about if the circumstances so warranted, 
and opens up a broad range of different kinds of possibilities. Yours 
is much more restrictive. Let us move on, but I would expect that 
you would probably have some litigation on that. 

Mr. Tarr. Mr. Chairman, the only points that I have tried to weigh 
in my own opinion is what would the House have disagreed to if a 
liberal interpretation is placed upon this phrase in the conference 
report. I think the position of the House conferees is that you must 
set some time beyond which people no longer can contest their induc- 
tions by delayed claims. So obviously one has to balance what is in 
this sentence with the adamant position of the House conferees, and 
what ultimately emerged in the language of the law, and I have tried 
to do this by taking into account the long postponement. 

Senator Kennedy. Well, why don't we continue then. 

Mr. Tarr. Second, some critics have judged that our prepublished 
regulations do not carry out the requirement of the law that the 
alternate work program be administered by the Director of Selective 
Service. Before passage of the recent legislation, the Military Selec- 
tive Service Act placed this responsibility on the local board. There 
is no question that the Director now must be responsible for the work 
program, although the law still requires that the local board order 
the registrant to work. 

In studying this particular amendment, I tried to determine how 
I could control what actually is done and still find sufficient num- 



43 

bers of jobs for conscientious objectors. Obviously these jobs exist 
in communities in each State, and they are known best to State 
directors and employees of the System in local offices. Perhaps this 
is what Senate conferees had in mind when they asked that the 
director continue to rely upon local experience and arrangements. 
Furthermore, jobs often remain open for a very short time, so that 
if we wait for cumbersome clearances such as those required if every 
contention must be settled at national headquarters, then our chances 
for placement diminish substantially. Kecognizing these necessities, 
I have decided to hold State directors responsible for the placement 
of men into alternate service positions. 

I feel confident that the visitation of my representatives to State 
headquarters and the reports I receive will make it possible for me 
to administer the alternate service program more effectively than I 
could if I were to centralize the administration entirely in Wash- 
ington, I am certain I will place people more effectively in this 
way. Also, I have started to develop national programs with church 
groups and organizations that offer the possibility for placing con- 
siderable numbers of conscientious objectors, and these will be ad- 
ministered by my office. 

Third, there is criticism that the State director, by waiving the 
criteria regarding the pay for an alterante service job, really has 
the power to compel a man to accept a starvation wage. At the out- 
set, let me say that the State director has no authority to order a 
man to a job in the 60-day period in which he is free to look for 
himself ; those who place themselves need not worry about what kind 
of job the State director may find for them. Additionally, it is not 
always possible that the State director will find sufficient numbers 
of jobs for all conscientious objectors that will provide a standard 
of living reasonably comparable to what the man would have enjoyed 
had he joined the Armed Forces, given present levels of pay in the 
services. Much as we would welcome this, we cannot guarantee it. 
If we were to make it mandatory that the State director assign men 
only to jobs with pay comparable to that in the Army, then in many 
areas the State directors would be inhibited severely from making 
placements. Accordingly I intend to supervise the work of State 
directors closely. It is my responsibility to make certain that no 
manager in this System conducts himself in a cavalier manner. 

Now let us discuss briefly the form 150. We have needed a new 
form since the Welsh decision in June 1970. I delayed writing one, 
awaiting amendments to the law, but now I must publish something 
soon. Because the form attracts so much interest on the part of many 
registrants. I published it in the Federal Eegister for public 
comment. I did not do so because I considered it a regulation. I 
have received 19 letters that now are being evaluated. I can go into 
details concerning this form if the committee desires. 

4. GOVERNMENT APPEAL AGENT 

Mr. Chairman, in your letter to me you asked that I discuss with 
you the abolition of the post of Government appeal agent, We have 



44 

had several problems in connection with this position, the most im- 
portant being the responsibility that the official had both to the 
local board and to the registrant. Critics of the System have com- 
plained about this dual responsibility for many years. Some time 
ago the Committee on Ethics of the American Bar Association took 
the position that they no longer could agree to a lawyer serving 
both clients. Members of this subcommittee suggested a serious con- 
flict of interest inherent in the post. Under these circumstances, we 
decided to abolish the position. 

Senator Kennedy. I must say the recommendation of this com- 
mittee was the establishment of legal counsel. 

Mr. Tarr. Well, but with responsibility only to the registrant. 
Senator Kennedy. Yes. Sorry, but even the chairman of the 
Armed Services Committee in his explanation of the section indi- 
cated that he thought the Government appeal agent had a very 
important role to play. Now, you not only do not permit legal 
counsel, but you also have abolished the appeal agent too. 

Mr. Tarr. But which transferred his responsibility with respect 
to the registrant to the adviser to the registrant. 

Senator Kennedy. Ad visor to the registrant, and does he 

Air. Tarr. Well, we now have emphasized that we appoint men 
and women who can advise registrants of their rights and respon- 
sibilities who will have some awareness of our law and our regula- 
tions, and we hope to have a training program that will prepare 
these people for this responsibility. There is no question that they 
are accountable only to the registrant and what they learn from 
the registrant they keep in confidence. 

Senator Kennedy. How many advisers to the registrant do you 
have? 

Mr. Tarr. Over 7,000. 

Senator Kennedy. And how many boards ? 
Mr. Tarr. 4,100. 

Senator Kennedy. Does every board have an adviser? 
Mr. Tarr. No ; some do not. 
Senator Kennedy. What percent do ? 

Mr. Tarr. I cannot tell you that, Mr. Chairman, but part of our 
problem here is that we have used the post of adviser to registrants 
m many States in order to prepare people for service on local 
boards. It is an excellent training place for people who are breaking 
into the system, and thus when the new law began to apply at the 
first of the year, and many of our local board members, about 3,500 
of them, were retired from the system, there were in some cases 
rather wholesale appointments of advisers to registrants to the posi- 
tion of local board membership. 

Senator Kennedy. As I understand, in your publication, in the 
follow-up in the recommendations to the Selective Service Youth 
Advisory Committee, you point out here that Government appeal 
agents, should be responsible only to draftees. And then you talk 
about, in the spirit of the committee recommendations, the general 
counsel is working on language of Selective Service regulation to 



45 

insure the Government appeal agent is of even greater assistance 
to the registrant, and at the same time continues to provide pro- 
cedural advice to the board. And now we find that they have been 

abolished. . , , , -^ <• i ^ 

Mr. Tarr. Well, we finally decided that our position ot dual 
responsibility would not really work effectively. 

Senator Kennedy. Are these advisers paid, or do they serve 
voluntary? 

Mr. Tarr. All voluntary. 

Senator Kennedy. And you cannot tell us what percentage of the 
registrants do not have any advisers then today, can you ? 

Mr. Tarr. I cannot now. 

Senator Kennedy. Can you tell us when everyone will at least 

have some? 

Mr. Tarr. Excuse me? 

Senator Kennedy. Can you tell us when everyone will be covered? 
Do von have a program with a target goal as to when everyone 
will be covered ? 

Mr. Tarr. Mr. Chairman, I have not set a target, but I am going 
to meet with all State directors in the middle of this month, and I 
am going to emphasize to them the importance of recruiting and 
training advisers to registrants. There is some more in the statement 
that reflects on what we hope to do here. 

Senator Kennedy. All right. 

Mr. Tarr. Many of our Government appeal agents either have 
become advisers to registrants or members of local boards. We intend 
to start a training program for advisers to registrants based upon 
instructional material that now is in preparation. We have worked 
out an agreement with the young lawyers section of the American 
Bar Association to recruit their members to become advisers to reo-is- 
trants. Currently over 7,000 persons are serving in this way, and we 
are continuing recruitment. 

Two more criticisms remain. First, why not require that at least 
off adviser to registrants be appointed to each local board? I cannot 
place this requirement on myself now without making it impossible 
for many of our boards to meet the standard. Some advisers to 
registrants have become local board members following the retire- 
ments brought about by amendments recently enacted. We have just 
completed extensive recruiting to provide members so that our local 
boards can operate. 

Second, why not give the advisev to registrants the authority to 
order the reopening of a registrant's classification? This was an un- 
usual grant of authority to the Government appeal agent, equal 
at the local board level to that of the Director and the State di- 
rector. It could be justified because the Government appeal agent 
had a dual responsibilitv both to the registrant and his particular 
circumstances, and to the board and its previous handling of the 
registrant. The adviser to registrants does not have the authority 
to reopen a classification. But he can importune the State director 
to intervene, and he can do so to the Director as well. Frankly. T 

80-620—72 4 



46 



believe that this is a sufficient check against abuse by the local 
board, coupled with the system of inspection that I have established. 



AMNESTY 



Mr. Chairman, you have asked me to address myself to the 
impact of amnesty on the Selective Service System. The President 
has given his views on amnesty in a news conference on November 
12, 1971, and more extensively in a conversation with Mr. Dan 
Rather of CBS on January 2, 1972. I do not wish to make further 
comment on the wisdom of the timing of any such expression of 
the President's pardoning power or any possible action that might 
be taken by Congress. 

Perhaps" I can be of some assistance concerning the administrative 
implications of a general amnesty. 

First, I would like to emphasize that historically there has been 
administrative relief available for those who have evaded respon- 
sibility but later elected to serve. Thus, during the FBI investiga- 
tion, many registrants submit to induction. Some men do so after 
indictment, others before the trial begins. No U.S. attorney or Fed- 
eral judge that I know would refuse in the absence of unusual cir- 
cumstances a young man the chance to volunteer for induction and 
thereby avoid prosecution. 

Mr. Chairman, I would like to add that one advisor to these pro- 
ceedings this morning told be about a case where he may be able to 
request service in lieu of a jail term. That option exists in our 
regulations now. So there is leniency in the System, some of which 
already causes uneasiness among those who report promptly when 
they are called for induction. Recently we have seen a small increase 
in the numbers of men who return from hiding or Canada or some 
other sanctuary to volunteer for induction and avoid the penalty of 
a felony. Thus considerable relief is provided and has been available 
for many years. 

With respect to a general amnesty, the logical concern would be 
the ability of Selective Service to function. Several possibilities must 
be weighed. If the amnesty affected only those 300 or so men 
presently serving prison sentences, then inductions probably could 
continue but with some hard feelings among those ordered to report. 
If on the other hand, the amnesty made it possible for approximately 
10,000 men who have been convicted since 1947, and 6,000 registrants 
who face possible prosecution, to return to the full rights of citizen- 
ship without any penalty, then it would be difficult to justify the 
continuation of inductions. Our youth could not understand such 
opposing policies. I am certain that it would be nearly impossible to 
maintain membership on local boards as well. 

Finally, there is the alternative whereby amnesty is granted if the 
man serves the Nation in some way, apart from the armed services. 
This really would be an acceptance of selective conscientious objec- 
tion, but it would be offered only to those who had evaded the law. 
I am not certain that such an arrangement would make impossible 
a continuation of inductions, but I have grave doubts about the 



47 

equity of doing so. Furthermore, the Nation would accept a precedent 
for permitting the evasion of selective service law that might some 
day be an unwelcome tradition. This policy also could affect the 
attitudes and the discipline among young men in the armed services. 

In short, I believe that any widespread program of amnesty would 
be incompatible with the continuation of inductions. 

Mr. Chairman, I will be happy to discuss these or any other matters 
with you, and I await your questions. 

Senator Kennedy. Thank you very much Mr. Tarr. 

Perhaps we can start at the latter part, and try to follow the 10- 
minute rule so that we can get through. I have used most of my time, 
but I would like to just get into this last point, and then yield to the 
members of the committee here. I am sure they have some questions 
for you. 

You indicated there the President has given his view on the 
amnesty, in the news conference of November 12, and also more 
extensively. Would you care to restate those views for us? 

Mr. Tarr. Mr. Chairman, would you mind if I read them into 
the record? 

Senator Kennedy. No, that is fine. 

Mr. Tarr. If I can just find them. On November 12, 1971, the 
question at a news conference was asked: "Mr. President, do you 
foresee granting amnesty to any of the young men who have fled the 
United States to avoid fighting in a war that they consider to be 
immoral?" And to this question, the President answered: "No." 

Then on January 2d, 1972, Mr. Kather on a televised conference, 
said, "Mr. President, recently you were asked a question about 
amnesty. You were asked if you foresaw any possibility of granting 
amnesty to those young people who have fled the country to avoid the 
draft, and you had a one-word answer, which was 'No.' Since then 
some Congressmen, among others, have proposed allowing these 
young men who want to come back, and are willing to do it, to come 
back without punishment if they will take alternate service of 2 
years or 4 years. Is there no amount of alternate service under which 
you could foresee granting amnesty?" 

The President replied: "No. The question that I was answering 
in that conference that you referred to, as you will recall, followed 
one where I had talked about the withdrawal of our forces, and the 
question was prefaced with that, as I recall." 

Mr. Rather responded : "It was." 

And then the President said: "In view of the withdrawal, how 
about amnesty? And I said 'No.' The answer is at this time 'No.' As 
long as there are Americans who would choose to serve their country 
rather than desert their country, and it is a hard choice, and they 
are there in Vietnam there will be no amnesty for those who deserted 
their country. And as long as there are any POW's held by the North 
Vietnamese, there will be no amnesty for those who deserted their 
country. 

"Just let me say, Mr. Rather, on that score, I don't say this because 
I am hardhearted. I say it because it is the only right thing to do. 
Two and a half million young Americans had to make the choice 



48 

When they went to serve in Vietnam. Most of them, I am sure, did 
not want to go. It is not a very pleasant place. I have been there a 
number of times. They are nice people, but it is not a pleasant place 
for an American to serve, and particularly in uniform. I imagine 
most of those young Americans when they went out there did so 
with some reluctance, but they chose to serve. Of those that chose 
to serve, thousands of them died for their choice, and until this war 
is over, and until we get the POW's back, those who chose to desert 
their country, a few hundred, they can live with their choice. That 
is my attitude." 

Mr. Rather said: "At some future time, the door might be 
opened?" 

And the President said : "We always, Mr. Rather, under our 
system, provide amnesty. You remember Abraham Lincoln in the 
last days of the Civil War, as a matter of fact just before his death, 
decided to give amnesty to anyone who had deserted if he would 
come back and rejoin his unit and serve out his period of time. 
Amnesty, of course, is always the prerogative of the Chief Executive. 
T. for one, would be very liberal with regard to amnesty, but not 
while there are Americans in Vietnam fighting to serve their country 
and defend their country, and not when POW's are held by North 
Vietnam. After that, we will consider it, but it would have to be on 
the basis of their paying the price, of course, that anyone should pay 
for violating the law." 

Senator Kennedy. Does that represent your own view, too ? 

Mr. Tarr. Mr. Chairman, I would rather not express a view to 
the committee, but I will say that I have made a very similar 
statement at times past, I do not think it would be appropriate for 
me to talk about the wisdom of the President exerting his preroga- 
tive under article II, section 2 of the Constitution, when he already 
has spoken and when I am obviously a servant of his administration. 

Senator Kennedy. Well, then, could we move to his position in 
attempting to elaborate this to some extent. I would understand 
what he said was that as long as there is a war, and as long as Amer- 
ican prisoners of war are being held, there will be no amnesty. Is 
that correct? 

Mr. Take. That is my understanding. 

Senator Kennedy. And that even at the end of hostilities, and 
after the return of American prisoners of war, he has stated that 
he would be willing to consider it, but that there would be some 
penalty attached to it. 

Mr. Tarr. This is my understanding. 

Senator Kennedy. And do you have any idea now what those 
penalties would be? 

Mr. Tarr. I have not. 

Senator Kennedy. Are you prepared to make any recommendations 
to him? 

Mr. Tarr. T think not, Mr. Chairman. 

Senator Kennedy. There is very little comfort that can bo offered 
to any of the young people themselves. Perhaps some of these young 



49 

/eople actually left the country prior to the time of the Welsh deci- 
sion, in which the Supreme Court of the United States broadened 
the law of the land to include deeply held moral or ethical beliefs 
concerning conscientious objection. I am sure that many young people 
are abroad because of these deeply held beliefs. 

Now that the Supreme Court has taken the position they have, 
what kind of hope can be offered to those individuals? Are they to 
remain away from their homes and their families during this period 
of time, as long as the war continues, and there are POWs? Is there 
anything that could be done for any particular groups? 

Mr. Tarr. Mr. Chairman, those people, for the most part, are under 
indictment. There may be some who are not under indictment, and 
if they were, obviously they could petition their local board for a 
hearing on the basis of the changed requirements placed upon Selec- 
tive Service because of the Supreme Court decision. 

And my instruction to local boards in circumstances like those 
would be by all means give that man a chance for reopening his 
classification, and make the judgment on the basis of what the most 
recent interpretation of the Supreme Court is. 

Unfortunately, most of the men who is a sense have fled the country 
for that particular reason, probably are under indictment. 

May I add a point here? That is that our figures for those under 
indictment are much lower than published figures of people who have 
fled the country, and I perhaps am not the one to reconcile the dif- 
ferences between these figures : but, these men who are under indict- 
ment necessarily must make their case with the Justice Department, 
and the U.S. attorney, rather than Selective Service, and I would 
suggest that perhaps the Justice Department might be the people 
with whom some exploration could be made. 

But. my own feeling is that this is a reasonable area for some 
careful consideration of leniency. 

Senator Kennedy. Is not one of the real problems that we are 
facing, as you pointed out in your comments, that if we grant 
amnesty to any individuals today who fled the country, that there is 
a concern among Americans about fair play. They are concerned that 
their brothers or sisters, brothers, rather, or sons served, and some- 
how these young people here have escaped that service? 

And also, T suppose there is a feeling among political leaders and 
others as well, about whether this really is fair play. 
_ And secondly, there is the question of the functioning or the con- 
tinuation of the draft, if young men can. in effect, say, "Well, we 
will just <ro across into Canada, and come back under any sort of an 
amnesty." I suppose yon must balance that against the fact that 
today in the political spectrum practicallv every political leader says 
that the war is a mistake and wrong. You have these young people 
who said it was wrong. A good deal before the political leaders, with 
certain notable exceptions, and were willing to undergo the separation 
from their families, from their loved ones, and the interruptions of 
their own education or careers. They left the country, may have been 
away up to 5 years or even longer. 



50 

I do not think that is a very pleasant kind of prospect, and I do 
not think many of the young people that have left have felt that 
they have enjoyed a free ride. 

I suppose the basic question that is appropriate for us to ask, and 
I would think that the President has to struggle with this question 
given his statement and comments in the 1968 campaign about recon- 
ciliation and about bringing the country back together, is how much 
of a penalty are you going to ask ? 

I suppose a penalty could come in many different ways. The one we 
all think of, obviously, is the loss of any kind of freedom ; yet I suppose 
the penalty for these young people is being separated from their fami- 
lies and being away from their loved ones, and probably living with the 
stigma of having fled for their future life. I suppose that the real ques- 
tion is, whether and how much of a penalty are we going to ask these 
people to pay. 

It is important that the political leaders of today, and I say this in 
terms of my own party, were advocating the continuation of the war 
and the escalation of military involvement, and they now have changed. 
It is, a political writer said, as if the political leaders are asking for 
amnesty for their previous position, and they are going to the Ameri- 
can people and trying to get it. 

Obviously, I do not draw away from the significance and importance 
of that change. But what about those young men who are being sepa- 
rated from their families? I was just interested if you could, having 
given us the position of the administration. I am interested in your 
views as the Director of the Selective Service, and as one upon whom 
the President will rely for counsel and judgment. How do you per- 
sonally balance these various considerations ? 

I know where you have to come out today. And I am not interested in 
pressing you in terms of that required position. But I think it would be 
of some interest to the great number of young people in this country 
who care so much about it. Also in fairness to the parents of those who 
fled as well as to those on the other side, I think I at least would like to 
have some kind of a feel for your own view. How significant do you 
think this is ? And how important is it in trying to bring this country 
back together in the wake of one of the crudest kinds of experiences for 
which all of us bear considerable degree of blame ? 

Mr. Tare. Mr. Chairman, I do have very deep anxieties about the 
problems that were caused by this war. I was not nearly as clair- 
voyant at the time when we got into these difficulties as many people 
suggest that they were at the time we went into it. 

I did not foresee the difficulties that have prevailed, although I 
have always believed that the main difficulty in a democracy is when 
the Executive moves into an area of initiative without first formu- 
lating the total support of the people. That is imperative if you are 
going to succeed. 

You will recall that this was part of the problem in the War of 
1812. To a certain degree it was the cause of friction in the War 
with Mexico. You remember that President Lincoln won his first 
national notorietv with the spot resolution, wanting to know the spot 
on American soil where the blood was first shed in the conflict with 
the Mexican forces. 



51 

I have found it helpful in this area, which is obviously one of the 
rreat anxieties and of importance to see what tradition we have 
established already with respect to amnesty. 

And I would respectfully suggest to the committee that you may 
wish to include in your hearing the report written by the people 
in the Library of Congress who help you. They have made this 
study that many of you have seen, I know. Unfortunately, as we look 
for historical precedent, we fail to find any kind of action as sweep- 
ing as many people believe should be applied now, so that after we 
read history we recognize that we are still living in 1972 and must 
set all precedents for the future. My own feeling is 

Senator Kennedy. Mr. Tarr, just on this point— and I want to give 
you a chance to finish the thought— but after the Civil War we gave 
amnesty to persons charged with treason to the United States. 

Mr. Tare. But it was a civil war, you see. 

Senator Kennedy. I do not know if many of the people thought 
thev had commited treason at the time when it was granted. 

Mr. Tarr. It was granted, as you will recall, in several separate 
steps, it is my understanding, and the first action involved people 
below a certain rank and below a certain political level, and that 
was the one that Mr. Lincoln became involved with. 

But, later it was broadened. But still, then, if we use the Civil 
War, we are still going to have to determine ways appropriate for 
1972, or 1973, or 1974, or whenever. 

My own feeling would be that hopefully when the authority for 
a draft expires, that the coimtry can embark on a very careful exam- 
ination of the whole problem, and at that time not worry about any 
impact it might have on inductions, because they are gone. 

My own feeling is that this will be over in the middle of 1973. 

Senator Kennedy. Senator Hart. 

Senator Hart. Dr. Tarr, would you agree that if we had adopted 
a principle of respecting the conscience of an individual who demon- 
strated deep moral offense at the notion of fighting this particular 
war, that wc would not have had so many in Canada? 

Mr. Tarr. Senator, I think there is no question about the fact that 
there are selective conscientious objectors in Canada. 

Senator Hart. All right, we know there are, and it is with respect 
to these men that we are concerned about amnesty, not the fellow that 
went to Canada because he stole the headquarters company cash fund, 
or something like that. 

Mr. Tarr. Senator, may I make a comment there ? I think you have 
to be a little bit careful here to recognize that many people who 
have deserted from the Armed Forces have done it for the same 
motivations as people who have said they were not going to come in 
in the first place. 

Senator Hart. I am glad you said that, and I hope we all under- 
stand it. 

Indeed, the depth of conviction may be even stronger when you 
havo seeu what actually goes on, when you have submitted to 
service. 



52 

This would be tragically locking the door after the horse is gone, 
but shouldn't we understand from the dilemma we now confront the 
need to modify, the existing Selective Service Act, if you could get 
the vote to understand that if we turn to a draft in the future that 
we should respect the individual conscience which is formed on the 
basis of a particular war? 

Mr. Tare. Certainly, Senator, I think every one of us has powerful 
motivation of idealism in this regard, and I hope that I can represent 
the fact that I have them. The unfortunate thing about my job is 
that I am not able entirely to focus all of my attention with my 
idealism with respect to philosophy but am required to work with the 
system of local boards in which very difficult judgments need to be 
made with respect to whatever law the Congress and the President 
decide upon. 

My own conclusion is that a system permitting selective conscien- 
tious objection would be almost impossible, I will say impossible, to 
operate in a system of local board judgments, such as the system that 
we now have. 

There is a significant sector of opinion among these people who 
follow the problems and the plight of conscientious objection closely 
that would argue, and they have argued with me rather strenuously, 
tha a man who gives his own plea of conscientious objection should 
be so classed. 

There is a lot of merit to this argument, because it is very difficult 
to determine the sincerity of a man who makes this plea, and even 
more difficult to determine the basis of his sincerity with respect to 
objection to a particular war. 

Now, on the other hand, it is a very difficult thing for a young 
man whose age is 18, to come before a group that is convened as a 
local board and tell you conscientiously that he is against all wars, 
because obviously he did not live through the war I fought in. 

He knew nothing about the circumstances in Korea: these young 
men with whom we are working now, some of whom were born after 
the Korean war was over. So, I think I am quite aware of what the 
philosophical and theological difficulties are, although I do not pro- 
fess to understand all of them. 

I am not a philosopher, but I think I recognize the problem there, 
and I recognize the difficulties that young people have, and I think 
I am quite aware of the difficulties local boards have. 

And all T can say is that this is the dilemma with which we have 
been working for 2 years in the best possible way we could. 

If you would not mind, Mr. Chairman, I would like to read a short 
paragraph into the record of a statement that was made by Albert 
Einstein. You will recall that Einstein was a very sincere conscien- 
tious obiVotor. a pacifist, who died worrying about the counsel he had 
given to President Roosevelt on the continuation of investigation 
into the atomic bomb and the development of it, 

If I can find this, I would like to read the statement that Einstein 
made, and it is in his biography that recently I finished, by an English- 
man named Clarke. (Ronald W. Clarke. Einstein, p. 480). It is a very 



53 

interesting thing. He is talking about conscientious objection with re- 
spect to Belgium at the start of World War II. 

I should like to venture some additional remarks, however. Men 
who, by their religious and moral convictions, are constrained to 
refuse military service should not be treated as criminals. Nor should 
anyone be permitted to sit in judgment on the question of whether 
such a refusal is rooted in deep conviction or in less worthy motives. 
[Reading:] 

In niv view there exists a more dignified and more effective way of testing 
and utilizing such men. They should be offered the alternative of accepting 
more overseas and hazardous work than military service. If their conviction 
is deep enough, they will choose this course; and there will probably never 
be many of such people. As substitute work I have in mind certain types of 
mine labor, stoking furnaces aboard ships, hospital service in infectious 
disease wards or in certain sections of mental institutions, and possibly 
other services of a similar nature. 

Anyone who voluntarily accepts such service without pay is possessed 
of remarkable qualities, and really deserves even more than merely being 
accepted as a conscientious objector. Certainly he should not be treated as 
a criminal. 

Now, Mr. Chairman, I would not want to push the quotation too 
far. because obviously Mr. Einstein was talking about conditions in 
Belgium that are completely different from what we have here. 

B^it I think that if the Congress ever decides, in its wisdom, 
that we should pursue a course oriented in the direction of opening 
the opportunity for conscientious objection to a man who objects to 
this particular war. then we should not ask a local board to determine 
his sincerity, but should make the judgment on the basis of his will- 
ingness to accept some other kind, some other sorts of things that 
Einstein was talking about. 

Senator Hart. All right. Doctor. I would not make a bet that 
Congress is about to proceed in this direction because of last June 
when I offered an amendment to provide for selective conscientious 
objection, and after debate, got only 12 votes. And I do not think you 
would have strengthened the case a bit to have said instead of alter- 
nate service now provided for, those who are the traditional CO, 
and get the status, that you have to prove the sincerity of your con- 
viction by digging coal for nothing. And I am very hesitant to seem 
to quarrel with a massive intellect like Dr. Einstein, but at first 
blush it just does not seem to be appropriate as the measure of 
determining what is a difficult factual question, if you have so strong 
a central conviction that to kill would be. if I could refer to the old- 
fashioned religion, a mortal sin. 

Now, I understand the difficulty of the local board or anybody 
else determining whether the registrant has borne the burden of 
proof, but surely that would not justify our failure to seek to devise 
some means that would provide for the protection of the country 
if it is possible. 

Now, am I correct that one who comes out of the traditional re- 
ligious disciplines which we have always respected and recognized 
to bo pacifists have a relatively easy burden of proof, the Seventh-day 
Adventists, the Quakers ? 



54 

Mr. Tarr. My understanding, Senator, is that they do. 

Senator Hart. Then the Court held, and in those cases where tra- 
dition establishes the proper position for them that all war is wrong, 
then the Court, rather recently held that one who entertained and 
could prove the belief that all war was wrong would not be required 
to show that it was the result of some formal religious discipline. 
Am I correct on that ? 

Mr. Tarr. Yes. 

Senator Hart. Yes or no ? 

Mr. Tarr. Yes, but I would like to add a question — or I mean a 
statement — and that is that it was not just that these were exempted 
by the 1940 act, it was all people on the basis of religious training and 
belief — you see what I mean — so it did not take a court case in that. 

And the next step 

Senator Hart. No, but it took a court case to pump from religious 
training and belief to no formal religious discipline. 

Mr. Tarr. Yes, the Seeger case in 1965. 

Senator Hart. Now, local courts make, or local boards, make that 
judgment, and the draftee has the burden of proof there. The diffi- 
culty of establishing the subjective feeling, I feel like is no less diffi- 
cult than the case of the selective objector. In fact, I think we could 
argue, you could really test the veracity of it a little more effective 
when a man comes in and says, for these reasons, in this place and 
time, this outrages my conscience. Why do we allow the local board 
to handle the humanist opposed to all wars, but say that we cannot 
trust the local board to make the judgment with respect to the in- 
dividual who seeks to develop the same kind of opposition to this 
war? 

Mr. Tarr. Senator, obviously, you have a continuum in that you 
raise the difficulty from easy to impossible, and there is no point at 
which I can say that the local board no longer can make a judgment 
or that up to this point they obviously make perfect judgments. 

There is no question that local boards have had to assume a greater 
degree of difficulty with the Seeger case and now with the Welsh 
case. Part of the problem, however, is that Congress has written 
into the law that the profession must be on the basis of conscience 
and not ordered by one's attitude on social, political, or economic 
problems, not on a personal moral code. 

And I think the difficulty is loading the local board with the 
more difficult judgment, that the man's profession is on the basis 
of conscience and not these others, when he opposes only one war. 

But, I do not want to make it sound as if it is an easy judgment 
for local boards now. When I talk with local board members around 
the country, and I do this as often as I can, the question that will 
come up in 9 times out of 10 is Mr. Director, what are you going to 
do to make it easier for us to judge who is a conscientious objector, 
and to that question I cannot give a positive answer because it is a 
very, very difficult judgment. 

Senator Hart. Well, all this says to me is that the exception that 
has long been traditional in this country for the one who opposes 



00 

all wars, involves the very same outrage to conscience, as when you 
give them a gun to fight a war, right now, that they find, to iind 
that same scruple. When we have gone to another draft law I hope 
we will not fail to provide for the selective conscientious objector, 
certainly not just because of the local draft board finds it a difficult 
case to resolve. I confess this sort of locks the door after Indochina, 
but I hope we do not forget our experience. 

Indeed, would it suggest — since everybody gropes for a way^ to 
grant amnesty, and we realize that there is a difference in protesting 
by burning your draft card and by blowing up a building and killing 
people — that we have sort of a reverse process in that setup. 

Instead of finding out if the man was a CO before you indict him, 
set up a process that will meet the young man as he comes in from 
Canada or wherever, and determine if the reason he did whatever 
he did was because his conscience was outraged by what society was 
demanding of him. 

Mr. Tarr. Well, Senator, all I can say is if that kind of a system 
is established, I hope I am not responsible for it. 

Senator Hart. Whatever system is established will not work with 
ease. 

Mr. Tarr. That is right. 

Senator Hart. But, I repeat, the difficulty of making the judgment 
does not excuse us from attempting to treat with a measure of justice 
those men who found something less, in my mind, than justice in the 
situation that compelled them to run off. 

Thank you, Mr. Chairman. 

Thank you, Doctor. 

Senator Kennedy. Senator Gurney. 

Senator Gurnet. Well, Mr. Chairman, I want to commend the 
Director on a very fine and comprehensive statement. It seems to me 
that it indicates there are many changes that have been made in 
recent times in the draft law and its enforcement, and carrying out 
the workings of it that have made it fairer and more equitable, and 
work better for not only the country, but also the young men 
involved. 

And I want to compliment the Director and his people for the work 
thev have done. 

It seems to me on this business of amnesty you really have a couple 
of points here : One, you have got two kinds of draft evaders, the 
true conscientious objector, and those that have decided that this 
particular war is not the right kind of war, or at least they do not 
want to go to it. Wouldn't you say that they fit into those two broad 
classifications? 

Mr. Tarr. Senator, I think that so long as you write into this first 
classification the ones that the chairman mentioned, those who were 
conscientious objectors under the guidelines that the Supreme Court 
now has given us in Welsh, who went to Canada before, or whenever, 
underground or wherever, and are indicted, but felt the way Welsh 
did. I sav that there is that group, and the second group is the one 
you described, the ones against this war. 



56 

Senator Gurnet. The second group is what troubled me. Of course, 
there are the usual arguments of why should you grant amnesty to 
someone who has not fought, and we all heard about those, and 
people are very emotional on the one side or the other, but the 
thing that troubles me about all of this is I think this is the first 
time in the history of our country involving wars that there has been 
a proposal of granting amnesty while we were at war. 

We have granted amnesty in many other wars, as has been pointed 
out here today. But, it seems to me that if we established a precedent 
of granting amnesty during wartime, when we are faced with a real 
problem, then I do not see how you could raise an army of draftees 
that would be effective if you established a precedent of granting 
amnesty during wartime. 

And certainly if this occurred, as I think would be the inevitable 
result, our freedom certainly would be in jeopardy at some future 
time. I do not think it is in Vietnam, but in some other war it might 
well be in jeopardy, and we might not be able to survive if we have 
that sort of precedent. 

The other thing that occurs to me is this: Again, if we establish 
that kind of a precedent, it seems to me if we say to people that it 
it all right if you judge a law individually, if the Congress or the 
State legislature or some other lawmaking body passes one it really 
does not matter, it is what you may decide is right or wrong about 
it, yourself. 

Well, it appears that only one result is inevitable there, and that 
is anarchy, and I do not think that any government can exist under 
circumstances like that. 

So, it seems to me that we have a much broader question involving 
this amnesty thing than the common, ordinary arguments that are 
always used. This is why I am opposed to it at this particular time. 
I think it would be entirely wrong, and certainly jeopardize our De- 
fense Department, or freedom, and be wholly wrong from the point 
of view of a society's right to make laws and to enforce them. 

I do not have any other questions. 

Senator Kennedy. Thank you very much. 

Senator Thurmond. Thank you, Mr. Chairman. Mr. Chairman, I 
have a few questions of Dr. Tarr. Before I ask those I would like 
to ask you a question, if you do not mind. 

Did I understand you to hint or suggest that those who fought 
against the Union in the so-called Civil War were traitors? 

Senator Kennedy. I said that they were labeled as such, as vio- 
lating the laws, that is right. 

Senator Thurmond. And would you call them traitors? 

Senator Kennedy. No ; I would not, 

Senator Thurmond. Well, I wanted to debate that with you, and 
I wanted to remove any insinuation because I got the clear impression 
that you said they were traitors. 

Senator Hart. Mr. Chairman, would you yield there? 

Senator Thurmond, are you saying that the Confederates were 
responding to a deep moral conviction? 

Senator Thurmond. I am saying that the Confederates were fight- 
ing for the rights of the State. The States joined the Union voliui- 



ot 



tarily, and they felt they had a right to withdraw voluntarily, and 
they fought for the States where they lived, most of them. 

There were a few that fought on the other side, and to call those 
people traitors would be entirely out of order. There is no such 
thing, as the grandson of a Confederate veteran who fought in that 
war, as my grandfather being a traitor, and I would deeply resent 
it, and you know I would. 

Senator Hart. And I hope you did not misunderstand my ques- 
tion. I respect the conscience of your grandfather, and I am glad 
he was granted the equivalent of amnesty. 

Senator Thurmond. Well, I want to say this, that was a different 
situation from now, and in this Vietnam war the States are still a 
part of the Union. Back then they withdrew and thought they were 
out of the Union, and were fighting for an entirely different cause. 
There is no comparison at all between the two. I heartily disagree 
with the Senator from Michigan on that point. 

Now, Dr. Tarr, I have a few questions here I would like to pro- 
pound to you. The effects of amnesty on those registrants who face 
induction is apparent. 

You mentioned that it would be nearly impossible to maintain 
membership on local boards. Would you please elaborate on this? 

Mr. Tarr. Senator, I wrote that statement because I have had 
experiences now with several Supreme Court cases. For instance, 
after the Mohammed All decision by the Supreme Court a few boards 
simply resigned. 

After the Seeger trial quite a few boards resigned. After the Welsh 
decision we had rather widespread resignations. In a way, since we 
have 17.000 board members, we can chart the cross section of opinion 
of our board members by the way in which they respond to public 
decision through resignation. I simply believe if we went forward 
with a program of amnesty at the same time we were requiring them 
to be responsible for inductions, many of them would simply resign 
and say I do not wish to do so. 

Senator Thurmond. Dr. Tarr, approximately how many conscien- 
tious objector applications do you receive per 100 persons drafted? 

Mr. Tarr. Senator 

Senator Thurmond. Or per 1,000, if it is an easier figure. 

Mr. Tarr. Senator, I cannot tell you accurately what that is, but 
I can give you some information. We were watching applications for 
conscientious objection, and actions taken by the System on the basis 
of these pleas very closely in 1971. For the 6 months that we watched 
these we received some 12.000 to 14.000 applications for conscientious 
objection each month, which would put it over 100,000 a year. 

And so for 1971 we received more applications for conscientious 
objection than we had inductions. I do not mean to extrapolate any 
particular judgment from that figure, but simply to respond to your 
question. 

Of these 12.000 to 14.000 a month, our local boards and appeal 
boards were granting from 3.000 to 4,000 a month, which would place 
the number somewhere around 40,000 a year. 

(The following more detailed response to Senator Thurmond's 
question was subsequently submitted by the Selective Service System :) 



58 

During the last period for which we have a selective service report, it was 
found thai 110,708 registrants made an application for a conscientious ob- 
jector status in some form. During that same period 104,644 men were inducted. 
This would indicate that 672 men made an application for a conscientious ob- 
jector status, in 1-A-0 or 1-0, for every 1,000 young men who were inducted. 

Senator Thurmond. Dr. Tarr, I agree that any such alternative 
duty should not be granted to just those who have evaded the law. 
There is no way we can justify the inequity, these proposals would 
create — what do you think of proposals to have all conscientious 
objcetors serve such alternative duty? 

Mr. Tarr. Now, Mr. Senator, do you mean the people who have 
fled the country, who profess conscientious objection? 

Senator Thurmond. Yes; or those who have evaded the law and 
fled the country. 

Mr. Tarr. Well, I think that insofar as these men were conscien- 
tious objectors under the guidelines given by the Supreme Court in 
the Welsh decision, that to ask them to serve periods, a period of 
alternate service as a stipulation of amnesty would only be requiring 
what they would have done, admittedly at a younger time in their 
lives, if they had been classified as conscientious objectors by their 
local board at some earlier time. 

So, I would not have particular difficulty with that concept, but 
as I have noted in my statement, there are some difficulties with 
respect to precedents for the future that might arise if we included 
within the definition of conscientious objection the concept of oppo- 
sition to a specific war. 

Senator Thurmond. Of course, all of those who fled the country 
and went to Canada, or went to Sweden were not conscientious 
objectors. 
Mr. Tarr. I think it is important to remember that. 
Senator Thurmond. How is that ? 

Mr. Tarr. I think it is important that we remember that because 
of all of the people who have gone underground, or gone abroad, we 
can be positive that not all of them did so on the profession of 
conscience. 

In every war in our history there has been a certain migration of 
people who simply wanted to avoid the burden of service. 

Senator Thurmond. They just did not want to fight, and if they 
were conscientious objectors they had procedures here at home to have 
it ascertained that they were conscientious objectors. Instead many 
of these conscientious objectors evaded the country entirely and 
evaded their duty and let others do the fighting. Should we let them 
enjoy freedom when they return? 

Now, Dr. Tarr, you have been aware of the complications that 
would arise from the publication of call notices, postponements and 
other actions by the Selective Service Boards in the "Federal Regis- 
ter." In contrast to the complications, what, in your opinion, would 
be the benefit from such publication? 

Mr. Tarr. Senator, I believe that we now are able to embark, with 

Executive Order 11623, on a policy regarding our regulations that 

is much more straightforward than was the case prior to its issuance. 

When I came into Selective Service 2 years ago, we could only 

publish a new regulation after the President had signed an Executive 



59 

order. For this reason it was much more feasible for us to create rules 
for the agency under a regulation that existed, and I believe it is in 
connection— section 1604.1 of the regulations which makes it possible 
for the Director to prescribe certain rules for the agency. 

And so, some matters that now will be placed in regulations here- 
tofore were placed in local board memoranda, and also to State 
directors, local boards, telegrams to these people, and all the rest. I 
really think that now that we have gotten this interpretation from 
the Justice Department, and have the initiative to create the kind of 
rules that we think should govern the agency, that we now are pre- 
pared and will write these rules in the form of regulations in the 
future. 

If that is done, then I really see no requirements to publish other 
things, except to make them available to the public, which we have 
already made plans to do with our registrants processing manual. 

I think it is important that we follow all of the requirements of 
the Freedom of Information Act, and we mean to do this con- 
scientiously. 

So, beyond what now will be regulations themselves, I really see 
no point in prepublication. 

Senator Thurmond. Dr. Tarr, in regard to my last question. I 
understand that you have received a letter from Mr. Ralph Erickson, 
Assistant Attorney General, and I believe that this letter will 
provide the members of the subcommittee with a great deal of insight 
into the inherent problems, and I request that you read and elaborate, 
if you wish, on this, for the benefit of the subcommittee. 

Senator Kennedy. It has already been made a part of the record, 
but obviously we can accede to Senator Thurmond's request, if he 
wants it read. It is already a part of the record at this time. It is a 
long letter. 

Senator Thurmond. Well, Mr. Chairman, since it is a part of the 
record, you might just omit reading it and possibly you wish to 
elaborate on it, since it is in the record. 

Mr. Tare. Senator, I have a statement in my statement that sum- 
marizes the letter that came from the Assistant Attorney General. 

The elaboration that I would like to give on the letter is simply that 
I intend to follow his advice scrupulously with respect to those things 
that should be prepublished. I would like, not like to appear before 
members of this subcommittee as taking a position other than that. 
But I intend to follow the law. This is what I took an oath to do, and 
I intend to do it. 

I was surprised when I received a letter from 23 Senators which 
gave their feelings on what the prepublication requirement was, and 
I have received similar comments from other people who have 
replied to our publication policies. Because of that I wanted to make 
absolutely certain that we had the best legal advice that we could gain 
in the Government, and for that reason we went to the Justice Depart- 
ment and asked for their letter that could be made a part of this 
record. 

Senator Thurmond. Now, Dr. Tarr. we are glad to have you with 
us, and I want to commend you for the objectivity and the fairness 
with which you have administered the Selective Service laws. 



60 

Mr. Tarr. I appreciate that. 

Senator Thurmond. Thank you, Mr. Chairman. I have no more 
questions. 

Senator Kennedy. Just in reference to the question of prepublica- 
tion : If you read, and I direct your attention to the Congressional 
Record of June 17, 1971, at S. 9358, where the chairman of the 
Armed Services Committee and I had an exchange on the floor of the 
Senate about the kind of things that should be prepublished. Any 
fair interpretation when reviewing that language would assume that 
LBM's, the local board memoranda, should be prepublished. 

You can look down, and this is quoting Senator Stennis : 

The Senator recalls that the court broadened the definition so that when 
(lie decision by the Supreme Court came out that called for issuance of the 
Director of the Selective Service at least for guidelines as to how the 
Director would apply and interpret the Supreme Court decision. 

That was something that Senator Stennis thought was going to be 
published. 

And you included those guidelines in your local board mem- 
oranda — that is not published — in LBM 107, and you have another 
example on local board memorandum 99. 

Another illustration, if I may continue this, and this is Senator 
Stennis : 

Even though we have a lottery system, a chance drawing up by numbers, 
nevertheless the national register issues regulations as to how they are going 
to break groups up as to age levels. These are those that are turning 19 
and those that are turning 20, and so forth. That comes out in the form of 
regulations. 

Now. that is what the chairman of the Armed Services says, that 
comes out "in the form of regulations," and yet you publish it in 
LBM 99, and you do not make them public. So, at least the chairman 
is telling the Members of the Senate what he thought was going to be 
prepublished, and we are acting on the basis of this. 

Now you use a different interpretation. That is at least part of 
the reason why the Senate has written to you, because your inter- 
pretation quite clearly contradicts what I think any reasonable 
interpretation of the legislative history would be. We have here 
specifically two examples, one 107, and 99. 

And it is quite clear that Senator Stennis felt at that time that those 
tyne? of things were going to be prepublished. 

Mr. Tarr. Mr. Chairman, because Mr. Erickson goes over these 
matters with the most infinite care and patience in his letter, I am 
not sure that it is productive for me to comment further. But I will 
say that Senator Mclntyre, who is also responsible for introducing 
this amendment, in the final argument with respect to the amend- 
ment that begins in the Congressional Record on page S. 9359, he 
make? the statement that one of the reasons for the publishing of the 
reo-iilations is because local board memoranda that are not published 
perhaps then will not have to be so lengthy. 

No one contradicted the obvious difference that Senator Mclntyre 
drew to regulations on the one hand and local board memoranda on 
the other. 

Senator Kennedy. But I would think that certainlv there is a xe- 



61 

sponsibility to publish those LBM's that have general applicability. 
I think that Mr. Erickson's letter recognized that. 

Mr. Take. I think that is true. 

Senator Kennedy. And I suggest that certainly in these areas, your 
construction has been extremely narrow. 

And I think that it certainly violated, as the author of that amend- 
ment, what we were trying to do in terms of notification. You have 
given us examples of where notification and prepublication has ac- 
tually benefited the fairness and equity of the System. I think we are 
not talking about the narrow kind of housekeeping guidelines, but 
those that have general applicability for registrants. 

And I think we expected that they would be prepublished. Just 
because you use another name for it does not really, you know, 
excuse that requirement. 

Mr. Tarr. Well, Mr. Chairman, I think I have already said to the 
committee that 

Senator Kennedy. Mr. Erickson said the question is does it provide 
general rules of substance and procedure binding upon the public, or 
does it chiefly instruct the system elements on how to do their jobs. 
Certainly those that apply to conscientious objectors have general 
applicability, would 3-011 not agree with me ? 

Mr. Tarr. But, Mr. Chairman, I think I have already told the 
committee that now that Mr. Erickson has given us what he thinks 
are the requirements of the law in this respect that I think we will 
follow them. 

I have also pointed out that under the arrangement that existed 
before Executive Order 11623 that there was a considerable blurring 
between local board memoranda and regulations, and that now no 
longer need be the case. I think I have already conceded this to 
the committee, and I hope that the record will show it. 

(See footnote 1 on this point prepared by subcommittee staff.) 

1 The prepublication controversy has sparked litigation resulting in two court decisions 
invalidating SSS directives for failure to comply with § 13(b) and the Freedom of 
Information Act: Levi v. Tnrr, 5 SSLR 3523, 40 U.S.L.W. 2833 (N.D Cal June 1 19T>) • 
and Gardiner v. Tarr, 341 F. Supp. 422, 5 SSLR 3329 (D.D.C. 1972). At issue in those 
cases was the validity of unpublished directives which purported to modify the rules 
under which conscientious objectors are called to perform alternate service The courts 
in both cases ruled that the challenged directives (although denominated "Tempor'arv 
Instructions" (TIs) and "letters to All State Directors" (LASDs)) were nonetheles*s 
"rules" or "regulations" under the Administrative Procedure Act and § 13(b) ; whatever 
the labels used by SSS, the directives "purport fed] to be an authoritative declaration of 
policy issued for the guidance of the System's line officers." National Student Association 
v. Hershey. 412 F.2d 1103, 1115 (D.C. Cir. 1969) ; see Levi v. Tarr, supra, 40 USL W 
2833, 5 SSLR at 3526 : Gardiner v. Tarr, supra, 341 F. Supp. at 434, 5 SSLR at 3333. 

In defending its position in court. SSS had urged that it was following guidelines set 
down in an opinion letter by Assistant Attorney General Ralph E. Erickson which was 
drafted in response to a request from SSS. (This opinion letter is in the hearing records 
of the subcommittee). The Erickson memorandum enunciated a three-part test for deter- 
mining which directives must be prepublished : 

(1) What is the System's "expert characterization" of the document. 

(2) What is the "function" of the document : and 

(3) What has been the "past treatment" of the subiect matter. 
See Gardiner v. Tarr, supra, 341 F. Supp. at 435, 5 SSLR at 3333. 

The Gardiner court ruled that even assuming the validity of the Erickson test, SSS 
violated that test by issuing regulatory material in various forms without regard to 
function or prior practice, thus seeking to make the publication status of a document 
depend exclusively on its label and not on its substance. See 341 F. Supp. at 435 n.7, 5 
SSLR at 3333 n. 7. The court drew this conclusion from the last page of the Erickson 
memorandum, which states in part : 

Obviously, Congress should not be deemed to have contemplated, in amending 
Section 13(b) so as to provide for the prepublication of the System's regulations, 
that material essentially the same as the previously isued as a regulation could 
henceforth be issued without pre-publication by the simple device of labelling it some- 
thing other than a regulation. . . . An example of this would be the issuance as an 
LP>M of a revised version of matter previously set forth as a regulation which is 
being repealed. In such a case, the pre-publication requierment of Section 13(b) 
should in my view be complied with. 

80-620—72 5 



62 

Senator Kennedy. What about the — excuse me. 

Mr. Tarr. You have given us the example of local board mem- 
orandum 107, and I will confess that there is some blurring between 
that and the regulations, but this was published in July of 1970. 

Now, you have raised the issue of local board memorandum 99, 
and that was published in late 1970, and then published I think on 
November 9th or 10th of 1971. 

Now, we showed this local board memorandum, which you will 
recall came, before the letter which I received from the 23 Senators, 
so I showed this memorandum to Mr. Erickson, or to people in the 
Justice Department who work in his office, and the first time I 
asked them for their counsel on the basis of your letter they said, 
"Well, this is the place where there might be some blurring." My own 
judgment is that in the future I intend to make all rulemaking as 
regulations, and we intend to prepublish them. 

Now, I really see very little that I can add in the record that indi- 
cates more fully what our intent is. 

Senator Kennedy. Would there be any reluctance on your part to 
publish the Registrants Processing Manual? 

Mr. Tarr. Yes, there would. It is A r oluminous. It is the kind of 
information that is intende dto explain regulations to the local board. 
It will be available to the public for a nominal fee. 

If people have criticisms of it they certainly can report that to 
me. There has been some criticism of one small portion of the Regis- 
trants Processing Manual that we are now in the process of changing, 
with respect to classification, but I would rather not be bound by a 
p republication requirement on something as voluminous and con- 
stantly changing as that necessarily would be. 

Senator Kennedy. I have many other questions, and I would like 
to submit them, if I could, and I think we have come a long way. 

I think what the record quite clearly shows is that the adminis- 
tration of the Selective Service, particularly as it operated over a 
period of time in the 1960's, was not fair nnd really not equitable in 
the selection of the young people in this country. 

And the changes you have made in a whole wide variety of differ- 
ent areas show the progress that has been made. 

In this review, we can quite clearly see the very serious, legitimate 
concerns that scores of young people have about how the system was 
set up, and how it was being utilized in selecting young people for the 
Armed Forces of this country. We are making progress, but I hope we 
can make further progress. 

We have touched on some of the areas needing work here this 
morning, and Senator Hart has as well. I would certainly hope that 
what we could agree, in concluding this morning's hearings, is to set 
as a goal, a national reconciliation including all those young people 
who have been affected by the war. Many have lost arms and legs. 
Many have started to use drugs, many have been hurt from the psy- 
chological impact of the war, and also many have been hurt because 
they are excluded from their country. I think reconciling all of these 
individuals is really one of the great challenges which exists for this 
Nation. 



63 

I think it exists today, and I think it is going to exist on into the 
future, and I think it is going to take the best of all of us in reaching 
the goal of reconciliation for young people. 

But. I think although it only is directed toward the young, it is 
basic to the direction and sense of purpose of the Nation. 

I want to express my appreciation for your appearance here, and 
for the comments that you have made, and I look forward to your 
responses to the questions to be submitted. 

The subcommittee stands in recess until 2 :15. 

(Whereupon, at 1 :20 p.m., the hearing was recessed, to reconvene at 
2 :15 this same day.) 

AFTERNOON" SESSION 

Senator Kennedy. The subcommittee will come to order. We will 
start off in the afternoon with our first panel : Mr. Karpatkin, Mr. 
Schulz, Mr. Shattuck, and Mr. Tuchinsky. 

STATEMENT OF MARVIN M. KARPATKIN, GENERAL COUNSEL, 
AMERICAN CIVIL LIBERTIES UNION 

Mr. Karpatkin. Mr. Chairman, on the behalf of the American 
Civil Liberties Union, I am delighted to accept this invitation to 
appear here. I remember with great pleasure the appearance 2 years 
ago here when a group of us from the American Civil Liberties 
Union and the New York Civil Liberties Union appeared before 
the subcommittee and shared with the subcommittee some of the 
experiences we had had in the administration of selective service 
regulations. 

I think it is first necessary to say for the record that in answer to 
3 T our invitation, I have been excused from a trial today of an ACLU- 
supported Selective Service case currently pending in the U.S. Dis- 
trict Court for the Southern District of New York. 

The ACLU is now in its 52d year. Our organization has always 
been deeply concerned with the serious threats to constitutional 
rights and civil liberties which are inherent in any system of com- 
pulsory military training. It has been our abiding view that such 
total infringement of individual liberties — freedom to line one's 
own life, to work, to study, to marry, to have a family, to travel, to 
be subject to civil rather than military law — can only be justified in 
time of actual declaration of war or genuinely necessary national 
emergency mobilization. Nothing less, we have argued, can legitima- 
tize the act of any democratic government to compel its citizens to 
take up arms, risk death, and be commanded to kill other human 
beings, as a matter of national policy. We have, therefore, urged 
the abolition of the current draft., and argued its unconstitutionality 
in the courts, and we will continue to do so. 

At the same time, however, we have been equally vitally concerned 
with the fair administration of the selective service system. I believe 
we gave before the subcommittee 2 years ago some of our rather dra- 
matic experiences in terms of acquittal rates comparing the situation 
as it existed in terms of the persons we represented and the situation 



64 

that had existed 5 years earlier. Also on terms of national legal 
development, ACLU has been involved in every significant Selective 
Service case decided by the Supreme Court subsequent to the fSeeger 
decision in 1965. Throughout all of this we pointed out not only the 
same observations which Senator Hart and others have made about 
the constitutional necessity as well as the wisdom of expanding pro- 
cedural rights of conscientious objectors, we pointed specifically to 
the lack of right of counsel, to the lack of guaranteed right of 
witnesses, to the absence of an impartial tribunal, to the absence of 
a right to reasons for an adverse decision, to the lack of requirements 
for a quorum, to the absence of a record, and many, many other 
things. 

We were therefore gratified when the Congress enacted into the 
1971 draft law a small number of long-overdue procedural rights. 
The phrase, 'procedural rights" introduces the section of the new 
law which gives these rights that had been absent from our selective 
service laws since 1910. The amendment recognized for the first time 
in more than 30 years that a young man facing the draft is entitled 
to bring witnesses before his local board ; to appear in person before 
the local board ; to have a quorum present and, upon request, to be 
given a statement of reasons for any adverse decision. It is ironic, of 
course, that Congress did not finally act to meet the widespread 
criticism of the Selective Service System until the war was winding 
down. 

I submit, and this will be the essence of my testimony, it is even 
more ironic that the Selective Service System, instead of trying to 
implement the liberalizing intent of Congress, has promulgated a 
series of regulations, and taken other actions which amount to an 
effort to undercut the new law. My colleagues at this table and others 
who will appear today, including experienced draft counselors, 
scholars, writers and acute observers of selective service laws and 
their administration, will testify in some detail on the impact on 
American life of 32 years of conscription, and the bureaucracy which 
it has spawned. I believe Dr. Tarr mentioned this morning that 
there were some registrants that were not even born until after the 
Korean war. The sad fact is today that no one of draft age is old 
enough to remember that there was a situation when the United 
States was without a draft. 

Of course the situation in our history has always been that we do 
not_ draft unless there is full-scale declaration of war or a true 
national emergency requiring it. Only since 1940, however, has the 
draft been foisted as a permanent system on the American land- 
scape. 

In any event, I will attempt to focus my observations on the phe- 
nomenon of truculent administrators resisting the implementation 
of the spirit and letter of reform legislation. 

It is clear I think, Mr. Chairman, to any objective, impartial 
observer that the section on procedural rights in the new law was 
intended to be reform legislation, it was intended to change the 
previous situation, it was intended to improve the rights of regis- 



65 

trants. That was both the congressional spirit as well as the congres- 
sional letter in the words of the legislation. Indeed even the con- 
ference committee in rejecting some of the proposals of the Senate, 
unwisely in our view, but even in its rejection indicated the whole 
thrust and purpose of what was being done with procedural rights 
was intended to be reform and improvement. 

One of the congressional reforms was the requirement that all 
regulations be "prepublished" in the Federal Register so that citizens 
should have an opportunity to see them and make comments before 
they take effect. This is no more than the normal procedure for regu- 
lations of the Federal Trade Commission, Food and Drug Adminis- 
tration, and practically all other Federal agencies. Selective service 
regulations have for years designated all official selective service 
forms as regulations, thus facilitating threats of prosecution of a 
young man who inadvertently or otherwise failed to conform with an 
official form, as being in violation of a selective service regulation, 
which is a crime. 

It is interesting that Dr. Tarr talked about his new conscientious 
objector official form, yet there was no mention that the previous 
14-page official form for conscientious objectors was not prepublished 
but simply leaked to various groups by Selective Service Director 
Tarr himself. Confronted with a barrage of protests about the form. 
Dr. Tarr announced that it would not be released in its current form, 
but reiterated that it would be releaseed without prepublication. This 
was such a plain A-iolation of the face of the law, that it is difficult 
to believe that it could have been approved even by Selective 
Service's own lawyers. The result was that the new revised form — a 
definite improvement — was prepublished, but, apparently to avoid any 
future impediments, the longstanding regulations giving official forms 
the status of regulations was revoked. By this devious route, the con- 
gressional purpose of disclosure is just as effectively frustrated. 

I think it is worth while to focus in on this just one bit. The Erick- 
son opinion letter which Dr. Tarr's statement says Selective Service 
intends to follow, has in the last paragraph on page 10 one caveat 
that is most relevant. The general thrust of the Erickson opinion 
is. in effect, that the Selective Service Director does not have to 
prepublish anything which is not a regulation. However, one warning 
on page 10 of the letter is where something had previously been a 
regulation, you cannot avoid the prepublication requirement by 
changing its status and starting to call it something other than a 
regulation. 

It is just impossible for me as a lawyer, Mr. Chairman, to see 
how the continued promulgation of regulations without prepublica- 
tion based upon the unilateral revocation of a 30-year-old regulation 
which said that every form is a regulation can still be justified as an 
avoidance of the prepublication process. I would very, very much 
like to hear what response Dr. Tarr and the general counsel would 
give to that. 

Among the new procedural rights dictated by Congress included 
the right to bring witnesses to local board hearings, and the right 
to actually appear before appeal boards, which had previously op- 



66 

erated completely behind closed doors. Indeed it may be of some 
interest to know that it was impossible to obtain the address of 
the appeal board. Registrants seeking this had been uniformly 
advised that this information was not available. Indeed it was 
rumored that appeal boards never even sat, never even passed the 
papers around, but that they communicated by telephone if at all. 
And so we welcome the requirement that the appeal board come at 
least partially out of the closet and is exposed to the registrant and 
allow the opportunity for a registrant to appear before them. 

Senator Kennedy. Let me just go up to the top of page 3. Your 
point is that these LBM's still have a substantive effect on registrants. 

Mr. Karpatkin. Well, there are two parts to this, Senator. Clearly 
the intent of Congress as you pointed out in your attempt to refresh 
Dr. Tarr's recollection this morning on the debate in the Senate, was 
that all LBM's which had a substantive effect, which were in effect 
law and not just guidelines, had to be prepublished. His argument 
was, well, the debate is ambiguous and I have the Erickson letter 
to support me. 

The point I am making is, and I think a much stronger one in 
terms of the record, a certain provision of the selective service 
regulations dating back probably to the 1940 draft and certainly 
at least to the 1948 draft had said that every official selective sendee 
form is regarded as a regulation. This includes, for example, form 
150, the special form for conscientious objectors. Selective Service had 
a reason for this. This is the way it could force compliance because 
violations of a regulation is violation of a statute and violation of 
a form, which is not a regulation, is not a violation of a statute. 

The question came up as to whether Selective Service has to pre- 
publish the form. Dr. Tarr claimed he did not have to publish the 150 
form. I am sure somebody on his legal staff pointed out to him here 
is a regulation that says every form is a regulation. Whereupon, they 
simply adopted a new regulation revoking that 30-year-old regula- 
tion which said all forms are regulations. Mr. Erickson. who is now 
the Chief of the Office of Legal Counsel of the Department of 
Justice, observed as one caveat to Dr. Tarr that where something 
previously had the status of a regulation and was required to be 
prepublished, the requirement for pre-publication does not terminate 
because you start calling it something else. And I submit that the 
argument here appears to be unassailable. 

With respect to the 15-minute requirement, I think it is almost 
predictable. Mr. Chairman and Senator Hart, that the 15 minutes 
which are allowed for local board appearances will turn out to be 
a maximum as was indicated in your colloquy with Dr. Tarr this 
morning and it is likewise predictable that the absence of a 15-minute 
firm requirement for appeal boards will not have the effect of giving 
persons more than 15 minutes but will have the effect of giving such 
persons as little time as the appeal board chooses to give them and 
in all probability even less. T think you will find the appeal boards and 
the selective service administrators justifying this on the basis of 
the fact that the regulations say they are entitled to 15 minutes for 






67 

local boards but they don't say anything as to what they are entitled to 
before appeal boards. We would have preferred, of course, specific in- 
formation in terms of both minimum and maximum, if you will, but at 

least specific 

Senator Kennedy. Have you had any experience with the appeal 

boards ? 

Mr. Karpatkin. So far as I know, no. Some of my colleagues may 
have but no one as yet has had a personal appearance before an appeal 
board. 

Senator Kennedy. Why not ? 

Mr. Karpatkin. The new regulations, which were prepublished on 
January 12 just went into effect on February 12. 

Mr. Schulz. They have been withheld pending these hearings. 

Mr. Kakpatkin. Mr. Schulz probably has expert information on 
that. 

Mr. Schulz. I don't claim that as expert information. That is my 
assumption. 

Mr. Karpatkin. So far as I know, no one yet has had a personal 
appearance before an appeal board but a number of registrants have 
communicated with their appeal boards requesting personal appear- 
ances and I believe the responses they received is that the regulation 
is not in effect and that the status quo will be followed until new 
regulations go into effect. 

Senator Kennedy. We should have found out when they expect 
to be finalized. Do you have any information on that? 

Mr. Schulz. Sir, I do not. The last period was the November 3 
to December 10 period. The first set of regulations went out on 
November 31, 1071. A lot of comments were received. They were 
all digested and most of those regulations published in final form 
on December 10, slightly more than a week after the 30-day period. 

Now, we have from January 12 through February 12, had only 
a small number of comments, 12 or 15 comments, and yet there is 
no final publication yet. It was expected as of a week ago. I was 
informed by Public Information at National Headquarters that these 
final regulations would be published between the 19th and 21st 
of February .That plan has been given up. 

Mr. TrrTTTNSKY. I spoke this morning preceding the start of the 
hearings with Mr. Kenneth Coffee, the head of the Public Informa- 
tion Office of National Selective Service System and asked him the 
question. He indicated they were holding back the. implementation 
of proposed regulations in order to allow more time to examine 
the public comments they have received, few though they seem to be. 

Senator Kennedy. In spite of the fact that this was in conference 
in July last year, agreed to basically in August, signed in September. 
September 28, here we are talking about October, November, Decem- 
ber, January, and February. 

Mr. Shulz. Mr. Chairman, I can speak from personal experience 
about that period. As we all know, the conference agreement with 
respect to all of the amendments of the Selective Service Act except 
the Mansfield amendment was firm as of August 4 and the two 



G8 

matters were certainly as of then to be considered separately, that 
is, there was no reasonable chance the agreements would be undone 
with respect to the amendments germane to Selective Service itself. 

At that time I suggested at National Headquarters that it might 
be a wise idea to begin to draft proposed regulations since it was 
99 percent certain that the law would be passed. And it finally was 
passed. That suggestion was not taken. As far as I know, no proposed 
regulations were even out until the end of September and then a 
preliminary set which were so inadequate that it wasn't even prepub- 
lished. It was revised and finally prepublished in November. 

Mr. Karpatkin. I think that in all respect to Dr. Tarr's attempt 
to justify the reduction of time within which he had requested per- 
sonal appearance from 30 days to 15 days, doesn't meet the require- 
ment of logic or the intent of Congress. 

First of all, Dr. Tarr is just wrong as a matter of regulation when 
he says previously the local board did not have the authority to 
extend it beyond 30 days. There is specific selective service regula- 
tions which gives the board the authority and we can find the 
regulation number and put it in the record. And indeed, local boards 
freely us that. But we do indeed know what the affect of this is going 
to be. Many many boards refuse to extend the regulation and I know 
of one notorious instance involving a young man, a lawyer, working 
in a rural legal poverty program in a southern State who mailed 
his letter of appeal from the denial of an occupational deferment 
based on his work there. He mailed it on the 30th in a rural delivery 
box near where he was working. The last postal pickup had taken 
place 2 hours before he mailed it. His local board, and let it be said, 
Local Board 1, Smithtown, N.Y., refused to give him his right of 
appeal because it was one day late and this was sustained by the 
officials at the New York State Headquarters and the result was that 
this young man received an induction letter and I hope that the 
Department of Justice and the U.S. Attorney's office will show com- 
passion which the local board and State headquarters did not show 
in that case. 

There are many such instances. Indeed it was precisely because of 
situations like this that the recommendation of the Marshall Com- 
mission and others prevailed upon General Hershey to raise the time, 
to increase the time from 10 days to 30 days and it was precisely 
because of involuntary waivers of appeal rights and personal ap- 
pearance rights. Now Dr. Tarr proposes to reduce it to 15 days. One 
might ask why is Dr. Tarr acting tougher than General Hershey? 

There was some discussion, well, I guess something else has to be 
said about the appeal board and local board practices. Perhaps the 
provision of time requirements is going to do something about reduc- 
ing the assembly line type treatment which many registrants have 
received. There was a famous decision by a Federal judge in Minne- 
sota holding that due process of law was denied when an appeal 
board handled several hundred cases in a short period of time so 
that each registrant received only 59 seconds of appeal time. We 
know of cases where there were only 38 seconds of appeal. Locnl 



69 

boards are even worse. One case was where a local board presumably 
considered and acted upon 600 cases in 2 hours. That is approxi- 
mately five cases per minute or 12 seconds per case. 

I am sure there are even more outrageous examples. Perhaps 
the provision of these time requirements or indication of interest in 
time requirements will do something to remedy this. 

(The following comment on Mr. Karpatkin's observation was sub- 
sequently submitted by the Selective Service System :) 

Comment. In only one judicial decision in the United States, U.S. v. Wallen, 
31.") P. Supp 4."i9 (U.S.D.C. Minn. July 2, 1970) was the simplistic mathematical 
formula applied of dividing the number of appeals heard into the total time 
elapsed during a meeting of a selective service appeal board and arriving at 
"per case time" of less than a minute per case thus resulting in a finding by 
the court that the defendant therein had not received due process. The formula 
used in Wallen does not, however, present an accurate picture of the time that 
is devoted to the consideration of individual cases of registrants whose appeals 
have substance and possible merit. In this connection, we should like to point 
out that it is a fact which is well known within and without the Selective 
Service System that inasmuch as all selective service registrants who receive 
a new classification have an absolute right of appeal to the appeal board having 
jurisdiction over their eases, a great percentage of registrants use their appeal 
rights as a means of temporizing, that is. gaining time without having any other 
reasons for the appeal or tendering any reason at all at the time the appeal 
is made. 

This, of course, is a perfectly legitimate way in which a registrant may 
exercise his rights to postpone his availability for purposes of induction. Such 
;: case, however, does not possess the quality of a matter requiring deliberation 
on the part of the appeal board. Since such pro forma appeals often make up 
as much as 70 to SO percent of all of the cases before the appeal board at any 
given meeting, it is customary for an appeal board to lump them together and 
affirm the local board's classification therein, thus, enabling the board to spend 
an adequate amount of time reviewing the cases of those registrants who have 
submitted reasons and affidavits seriously challenging the classifications given to 
them by their local boards. 

We are aware of only one District Court in the United States which has used 
the mathematical formula referred to above to demonstrate lack of due process 
to registrants on the part of the Selective Service System (United States v. 
Wallen, 315 F. Supp 459, District of Minnesota 1970). On the other hand, a 
number of other courts which have considered the precise question which was 
litigated adversely to us in Wallen have held that no such lack of due process 
occurred, including two Courts of Appeals of the United States I United States v. 
IVecJcels, 451 P. 2d 709. 9th Cir. 1971 and Sajna v. LaFnnice, et al.. No. 71-1002, 
affirmed by the United States Court of Appeals: 0th Cir., December 2S. 1971). 
Thus, the Wallen case must be regarded as a sui generis vis-a-vis the numerous 
District Court decisions (not cited) and the United States Courts of Appeals 
decisions to the contrary. 

There was some discussion about the impact of the MulJoy case and 
Dr. Tarr attempted to suggest he was being criticized unjustly about 
new regulations. I think it is important to understand what the 
Mulloy case was. It was a unanimous decision written by Justice 
Stewart. It held that a local board is compelled to reopen a classifi- 
cation thus giving valuable personal appearance and appeal rights 
whenever a registrant presents a prima facie case for a new classi- 
fication. 

It is not necessary for a registrant to prove his case to the hilt. 
It is not necessary to prove that his case fits the category of a pre- 
ponderance of evidence or reasonable doubt. It is just necessary to 
present a prima facie case, to present facts which if true, would 
entitle him to a reclassification. 



70 

The congressional action was in the same reform spirit. If any- 
thing is clear from the procedural rights which Congress sought to 
guarantee in the 1971 act, it is that each registrant is to be entitled 
to a fair hearing and a fair appeal, and not to be denied access to the 
decisionmaking process. Yet the latest revised regulation — an earlier 
version would have cut off appeal rights even more drastically— 
authorizes reopening only when new material is presented which, "in 
the opinion of the board" would justify a change. Surely Dr. Tarr 
and his able lawyers know the difference between a prima facie 
case and proving one's case completely. The effect of this regulation 
will be to bar thousands from having their cases even heard — by 
either local boards or appeal boards — unless they can first persuade 
the local board that they should prevail. This regulation, therefore, 
reflects resistance not only to Congress, but to the Supreme Court 
as well. It is as if a litigant in the court is told that you can't have the 
right to have your case heard and tried by a jury and you can't 
have your case appealed unless you have first persuaded the judge 
that you ought to win in the first place. 

One further procedural right which the Senate approved, but which 
did not survive the Senate-House Conference Committee, was the 
registrants be allowed the right to be accompanied by counsel. Op- 
ponents of the right of counsel, including Selective Service officials, 
have always pointed to the regulations which provide for Government 
appeal agents, usually attorneys, whose duties include furnishing 
advice and assistance to registrants. There were many things wrong 
with the Government appeal agents in theory and in practice, and 
we have not been reticent in bringing to the attention of Congress, the 
courts, the bar, and the public the anomalous and unfair requirement 
of divided loyalty. "We suggested to Dr. Tarr that a simple solution 
would be to provide that they should serve registrants only, since 
local boards can get legal advice from lawyers at State and national 
headquarters. "We did not receive a specific response other than a 
thank you for the suggestion when we submitted this to Dr. Tarr. Yet. 
what do we have now? The new regulations simply abolish the posi- 
tion of the Government appeal agent and substitutes nothing in its 

place. There should be no mistake about it 

Senator Kennedy. Was your impression of it adverse? 
Mr. Kaepatkix. Senator, advisers have been with us. They were 
advisers provided for back in the 1948 law. Indeed it was compulsory 
for many years that advisers be available as well as Government 
appeal agents. Then some registrants started winning cases be- 
cause Federal courts held absence of advisers to be a violation of 
their riffhts. "Whereupon, they changed it and made the advisers 
optional. Such advisers continue to exist, The Marshall Commission 
had a great deal to say about the availability of these advisers and 
pointed out many local boards didn't know who their advisers were. 
I don't care what they are called, whether they call them advisers 
or whatever, but several things are essential. First, that they should 
be persons who are either atfornevs or with le<?al training, as is 
the ca?e with Government appeal agents. Second, that it should be 



71 

certain that there will be at least one assigned to each board. And 
third, that they should have at least the same power which the 
Government appeal agents had, which is the power to take an 
appeal at any time and the power to make a formal recommendation 
in the file for a presidential appeal or reopening. Any of these 
solutions, however, I submit would not really meet the problem. The 
only way the problem would be met would be if that provision of 
the Senate bill for the right of counsel would become law. 

I know there is a report by the section on individual rights and 
liberties of the American Bar Association which makes these points 
in very very strong constitutional arguments and I take it that a 
copy of the letter from Mr. Turtle, the chairman of that ABA com- 
mittee, has been brought to the attention of the subcommittee. 

One other thing about the right of counsel. I had the privilege 
to argue before the Supreme Court of the United States the ACLU 
case of United States v. Wetter which sought to establish as a matter 
of constitutional law that there was a right of counsel. The SuDreme 
Court did not rule on the merits but remanded it to the 9th Circuit 
Court for jurisdictional reasons. The case will be argued there next 
month. But it was very interesting that Dr. Tarr made a comment in 
a talk where he reflected on that case — and I don't have the words 
before me but I can provide them; they are part of the Supreme 
Court record — he stated that we are aware of the fact that there 
are cases now pending in the Supreme Court which may make it 
necessary for us to make very very significant changes in our 
operations including changes with respect to the right of counsel. 
He assured all that if the Supreme Court decides we have to do 
this, we will certainly meet our responsibility and will be able to 
handle it. And I think it is perhaps important to bring to the 
attention of the Selective Service officials who might talk about the 
difficulties of providing counsel that when faced with the prospect 
of the Supreme Court decision. Dr. Tarr stated publicly that the 
Selective Service System would find some way to handle the problem 
of allowing registrants to be accompanied by civilian engaged counsel 
on their appearances before local boards. 

Dr. Tarr said something about enforcement this morning which 
even thonerh it isn't mentioned in my statement, I think should 
be responded to. 

Would that it were so. that no registrant who has refused induc- 
tion has his case presented to the grand jury and is indicted, until his 
case has been very critically reviewed to see if all of his legal rights 
have been granted him. 

I don't know the extent to which this may be true in other 
districts but I have no hesitation in publiclv stating that in the 
southern district of New lork this is not the case. There have been 
a number of decisions recently where persons were prosecuted who 
never should have been prosecuted, where the prosecutions were dis- 
missed by the judges at the conclusion of the Government's case, 
where prosecutions were clcarlv in violation of clear existing- prece- 
dents. Personally T brought to Dr. Tarr's attention that the U.S. 



72 

Attorney's office in the southern district of New York appears to 
have a practice of not allowing men who are prepared to accept 
induction after indictment to accept it. The practice seems to be to 
compel them to plead guilty and after there is a felony conviction 
on their record to suggest to the judge that they may allow the 
now convicted felon to enter the service as part of his probation. This 
is an unecessarily cruel practice, and I am glad that Dr. Tarr said 
he was going to investigate it. 

Let me conclude by some observations concerning conscientious 
objectors. I simply cannot understand why it was necessary for the 
national Director to redelegate back to the State directors all of the 
powers which Congress said he should have with regard to alterna- 
tive service jobs. It is quite clear to this practitioner why Congress 
wanted this to be centrally controlled. It is well known, for example, 
that the State of Mississippi and other States, that the State director 
has stated publicly that he will not permit alternative service jobs 
anywhere other than the most menial positions in State hospitals* 

In the State of New York we have a notorious incident where a 
young man had a perfectly acceptable alternative service job and the 
draft board discovered, horror of horrors, that his job was only 47 
miles from his place of employment instead of 50 miles and they 
pulled him out of that job and assigned him to work at Ellis Hos- 
pital hauling bedpans, et cetera, and not able to utilize his pro- 
fessional skills as a counsellor for disturbed children at St. Joseph's 
Hall, a highly respected institution run by the Diocese of Brooklyn. 

In another case a young man was able to obtain employment as 
a clerk in the office of the American Friends Service Committee, 
which is a well-known subversive organization, in the minds of some 
people, I suppose. And I will submit for the record a letter written 
by an official in Selective Service, in which it states that the American 
Friends Service Committee opposes loyalty oaths in security pro- 
grams, has supported nonviolence and has taken other positions 
which brought about controversy, and that a large majority of 
reasonable men are opposed to the actions of the American Friends 
Service Committee, therefore Selective Service feels that this indi- 
vidual should not work in an organization that a large percentage 
of reasonable people within the community disapprove. 

Now, I must say Dr. Tarr's office comes out with high marks. "When 
this was brought to the attention of Dr. Tarr's staff, it was straight- 
ened out and he was allowed to work some months later at the 
American Friends Service Committee office. But I submit it is pre- 
cisely because of these decisions by State directors in various parts 
of the country interposing their own notions and values as to what 
is acceptable work or not that Congress directed this should be cen- 
trally administered by national headquarters where there will be 
some sophistication as to what is an appropriate job. 

Now, Dr. Tarr proposes to redelegate all of the authority back to 
the State directors and I think that is bad. 

Finally, we regard as the most outrageous regulation of all a 
brand-new provision that any conscientious objector assigned to an 



73 

alternative service job who fails "to comply with reasonable require- 
ments of an employer shall be deemed to have knowingly failed or 
neglected to perform a duty required of him under the Military 
Selective Service Act," and "The registrant shall have failed to meet 
the standards of performance demanded by his employer or of his 
other employees in similar jobs." There are no misdemeanors or 
gradations of offenses under the act. Any violation exposes the regis- 
trant to a felony conviction, and up to 5 years in prison. To give this 
punitive power to a private employer is not only beyond anything 
intended by Congress but it seems to me is in violation of at least 
three constitutional guarantees against involuntary servitude under 
the 13th amendment, prohibition of criminal laws which arc void for 
vagueness, and punishment without due process of law. 

A provision of this kind invokes images only of slave labor camps 
or of compulsory work for the State where if you disobey the fore- 
man or camp commandant or trustee in charge of you, you are not 
only in danger of losing your job, but of being criminally prosecuted 
and being sent to jail. 

Senator Kennedy. Now, let me just make the case the Selective 
Service would make just to draw you out a bit. 

As I understand it, the employer feels that the registrant is not 
doing his job. He sends a report to the State director and then the 
State director sends the report to the registrant to reply. The State 
director investigates and then his decision is not appealable as I 
understand it. He files that decision with the U.S. Attorney and 
then the U.S. Attorney moves ahead to make an independent decision 
as to whether to go ahead and prosecute or not. Is that right? 

Mr. Karpatkin. Yes. It hasn't happened yet, but I presume that 
is how it would happen. 

Senator Kennedy. So, the U.S. Attorney makes an independent 
decision. But he is going to be guided by the rules and regulations 
of law, is he not? 

Mr. Karpatkin. Yes; but that is true also of any violation of the 
Selective Service laws or the Securities and Exchange Act or any 
other statute. The thing we are objecting to is the substantive creation 
of a new offense, the creation of a new crime. 

Senator Kennedy. He won't be guilty of a crime will he? 

Mr. Karpatkin. Of course he won't be guilty of a crime, but what 
is the crime ? The crime is not of violating a military order, punish- 
able under the UCMJ, the crime is not of violating a directive of a 
Government official. The crime is violating an order of a civilian em- 
ployer. We are bringing criminal law into the employer-and-employee 
relationship. I don't know anywhere that this exists in American 
jurisprudence. 

Senator Kennedy. How bad a worker does he have to be ? 

Mr. Karpatkin. Well — — 

Senator Kennedy. Where are we on that ? 

Mr. Karpatkin. There have been no prosecutions yet that I am 
aware of but I would not be surprised, Senator, if the American 
Civil Liberties Union would be instituting affirmative legislation to 
have it declared unconstitutional. 



74 

Mr. Sciittlz. It has been the experience of the past year or so 
in the civilian program that people who are "new culture types," 
long-haired people, and some of the new conscientious objectors are 
that kind of person, tend not to be reviewed well by their employers 
and they often are fired from their job or hassled by those who 
don't like that type person on the job. It is pretty clear you have an 
additional facet of discrimination, which is analagous to discrimina- 
tion on the basis of race or religion, by the employer against the 
employee and he has a broad range of discretion here, a classic case 
of discretion, which is wrongful because there is a danger of of it 
being exercised discriminatorily. 

Mr. Shattuck. Mr. Chairman, I am Jack Shattuck for the Ameri- 
can Friends Service Committee and I would like to call your atten- 
tion to one situation that has been revealed since September, at least 
the decision was handed down in October by the 10th Circuit Court 
of Appeals in United States v. Burnes which specifically issued that 
the man's attire, his long hair, and his attitude about what should be 
done about often when he reported to work were at question be- 
cause his employer felt one way and he felt another and because of 
the disagreement, the employer decided he couldn't work for him 
and the young man was prosecuted and the Court of Appeals affirmed 
the decision with the understanding he had no say about how he 
should appear on the job. This was up to the employer as a normal 
situation. This was struck down after the September 28th act. Of 
course not under the new provisions as proposed this was a preview 
of what might happen. And in fact has happened in one case. 

Mr. Kaepatktn. I think it is a fair accusation that Dr. Tarr and 
his advisers, with this regulation, totally without congressional au- 
thorization, are seeking to incorporate a militaristic regimen into 
the administration of what is supposed to be a civilian work program, 
I submit it is unbelievable that such an unconstitutional extravaganza 
which may be common in a totalitarian society, should have been 
conceived or approved by anybody, with any regard for individual 
liberty. 

(The following comment on the witnesses' statements was subse- 
quently submitted by the Selective Service System :) 

The Tenth Circuit Court of Appeals opinion in United States v. Burns, 450 F. 
2d 44 (1971), decided October 29, 1971, states most cogently persuasive justi- 
fication for the prosecution of 1-W's who refused to conform their appearances to 
reasonable rules and requirements of their employers. In this case, Burns had 
reported to St. Anthony's Hospital, Denver, Colorado, as ordered by his local 
board and asigned to work as a physical therapist orderly. After appearing with 
long hair and in "dirty" unkept clothing, and upon refusing to "clean up" upon 
the request of his superior, he was transferred to the hospital laundry. Here 
Burns was again ordered to trim his hair and clean up on the threat of disci- 
plinary action. Burns' response was that if this was the way it was going to 
he. he was leaving. At trial, Burns testified that his appearance wns his own 
business and that he left the hospital with no intention of returning. 

Later he informed his local board that be would not accept any order of 
the Selective Service System. The court in finding Burns guilty of knowingly 
failing or neglecting to report to civilian work in Hpu of military service said 
that an exemption, limited or otherwise, for actual military service is not a con- 
stitutional right of a registrant but one of legislative grace. The duty of the 
registrant classified as a conscientious objector to perform his statutory obli- 



gation is no less than that of those who are drafted to serve in the armed 
forces. The obligation of a conscientious objector duly assigned to civilian work 
cannot be avoided by deliberately refusing to comply with reasonable work rules 
and requirements established by an employer to whom he was ordered to report 
or by personal conduct which creates a situation intolerable to the employer. 

Section 1660.8 of the regulations provide that, "Any registrant who knowingly 
fails or neglects to obey an order from his local board to perform alternate 
service contributing to the maintenance of the national heatlh, safety or inter- 
est in lieu of induction or who constructively fails or neglects to obey such 
order by his failure to comply with reasonable requirements of an employer shall 
be deemed to have knowingly failed or neglected to perform a duty required of 
him under the Military Selective Service Act. 

The registrant shall have failed to meet the standards or failed to perform 
satisfactorily if he did not meet the standards of performance demanded by the 
employer of his other employees in similar jobs.'' 

In furtherance of the above, Section 1660.9(b) requires a State Director when- 
ever he has reason to believe that a registrant refused or constructively refused 
employment, or was relieved for cause or left his job unjustifiably, to conduct 
an investigation which includes the following : 

1. Obtain a statement from the former employer describing the circumstances 
and to furnish the registrant a copy of the statement. 

2. Obtain from the registrant a statement in his defense if he wishes to make 
one. 

3. To search for any additional evidence he feels may be relevant to the 
problem. 

Based on his investigation the State Director will determine whether the 
departure was unjustifiable and whether the termination was for cause. Shou'd 
he determine that the registrant's departure, constructive or otherwise, was with- 
out justification, he will report the registrant for prosecution. 

But, this is not the end of the safeguards provided by registrant. Following: 
the State Director's determination the violation is submitted to the Selective 
Service Regional Counsel for a legal review before referral to the United States 
Attorney (see Chapter 642. Registrants Processing Manual). The Regional 
Counsel will make an independent determination of the prosecutive merits of 
the case. Finally, should the Regional Counsel concur with the State Director that 
the matter should be referred to a United States Attorney, that officer will make 
an additional independent determination of the prosecutive merits of th° viola- 
tion. From this point there is still the necessity of processing the case through 
indictment and trial before the registrant is penalized for the violation. 

In view of the above, we consider there are ample safeguards and allegations 
that Selective Service is bringing "criminal law into the employer and employee 
relationship" is unfounded. Further, in view of the above described legal review 
by Regional Counsels of the office of the General Counsel, the registrant will have 
the right to "assistance from the National Headquarters" contrary to Mr. Kar- 
patkin's statement beginning on line 8, page 109, of the Hearing held before Sub- 
committee on Administrative Practice and Procedure of the Committee on Judi- 
ciary. Monday, February 28, 1972. 

Senator Kennedy. I suppose your point as well is that lie hasn't 
even the right to appeal to the national Director of Selective Service. 

Mr. Karpatkin. Yes. 

Senator Kennedy. He still won't even have that right, will he? 

Mr. Karpatkin. He won't even have the right to any assistance by 
administrators in Dr. Tarr's office. 

Again let me say it has been my experience that if one can get 
a hearing on a true case of injustice and get it considered in Dr. 
Tarr's office, that injustice will be undone. That unhappily is not 
also the case at all State headquarters. 

Let me say in conclusion, this bundle of repressive regulations may 
come as a jolting surprise to many who welcomed the change from 
General Hershey to Dr. Tarr. But whatever the political or other rea- 



76 

sons, the inescapable fact is that the Selective Service System appears 
to be systematically trying to take back a great deal of that which 
Congress was finally prevailed upon to grant. Unless public protests 
or court decisions force changes, the inevitable effect, in the words of 
the distinguished San Antonio atternoy, Maury Maverick, Jr., will 
be to "turn young people away from the courts and into the streets." 

Thank you very much. As I advised your assistant, after your ques- 
tions I am going to have to ask to be excused. 

Senator Kennedy. I want to thank you. These points are excellent. 
They answer most of the questions I hoped to get in this morning 
and was unable to do so. I think that we are going to propose a 
number of questions to Mr. Tarr and would like to be able to 
consult with you to get whatever initial ideas you have on it. 

Mr. Karpatkin. We would be delighted to do so. 

Senator Kennedy. You and your organization have been enorm- 
ously helpful in making the changes that have made the difference. 
Because of the work that has been done through your organization, 
we have been able to change the law, but unfortunately we have had 
some regressive steps again in proposed regulations. Some of the 
suggestions you have made here are enormously reasonable and ra- 
tional and clearly express the sentiment of those of us who were 
involved in those changes. 
We want to thank you very much. 

(The full statement of Marvin M. Karpatkin follows :) 

American Civil Liberties Union, 

156 Fifth Avenue, 
New York, N.Y., February 28, 1911. 

My name is Marvin M. Karpatkin. I testify today as a General Counsel 
of the American Civil Liberties Union. I am an attorney in private practice, 
a member of the firm of Karpatkin, Ohrenstein & Karpatkin, 1345 Avenue of 
the Americas, New York, N.Y. A considerable portion of my professional 
practice, as well as my volunteer work as an ACLU cooperating attorney, 
is in the area of selective service law and military law, and I also teach 
courses in these subjects as an Adjunct Professor of Law at New York 
University. In addition I am the current Chairman of the Committee on 
Military Justice and Military Affairs of the Association of the Bar of the 
City of New York, although my testimony today is solely in behalf of 
the ACLU. 

As a matter of fact, I am currently in the midst of a trial of an ACLU- 
sponsored selective service case in the Southern District of New York, and I 
express my gratitude to the presiding judge for his excusing me from the 
trial today, in order to be able to come to Washington to present this 
testimony. 

The ACLU, now in its 52nd year has always been deeply concerned with the 
serious threats to constitutional rights and civil liberties which are inherent 
in any system of compulsory military training. It has been our abiding view 
that such total infringement of individual liberties — freedom to live one's 
own life, to work, to study, to marry, to have a family, to travel, to be subject 
to civil rather than military law — can only be justified in time of actual 
declaration of war or genuinely necessary national emergency mobilization. 
Nothing less, we have argued, can legitimatize the act of any democratic 
government to compel its citizens to take up arms, risk death, and be com- 
manded to kill other human beings, as a matter of national policy. We have, 
therefore, urged the abolition of the current draft, and argued its unconsti- 
tutionality in the courts, and we will continue to do so. 

At the same time, however, we have been equally vitally concerned with the fair 



77 

administration of the Selective Service System. Over the past years ACLU law- 
yers all over the country have advised and represented thousands of registrants, 
and undertaken and supported extensive litigation, including the great majority 
of the Selective Service cases decided by the Supreme Court subsequent to the 
Seeger decision in 1965. 

We were therefore very gratified when the Congress enacted into the 
1971 draft law a small number of long-overdue procedural rights. That 
phrase "procedural rights,"' which is the title of a new section of the 1971 
Act, provided, for the first time in the more than 30 years that the draft has 
been with us, that a young man facing the draft is entitled to bring witnesses 
before his local board ; to appear in person before a local board and an appeal 
board; to have a quorum present; and, upon request, to be given a statement 
of reasons for any adverse decision. It is ironic, of course, that Congress did 
not finally act to meet the widespread criticism of the Selective Service 
System until the war was winding down. 

But, I submit, and this will be the essence of my testimony, it is even 
more ironic that the Selective Service System, instead of trying to implement 
the liberalizing intent of Congress, has promulgated a series of regulations, 
and taken other actions which amount to an effort to undercut the new law. 

Others who will appear today, including experienced draft counselors, 
scholars, writers and acute observers of the Selective Service laws and their 
administration, will testify in some detail on the impact on American life of 
thirty-two years of conscription, and the bureaucracy which it has spawned. 
I will attempt to focus my observations on the phenomenon of truculent 
administrators resisting the implementation of the spirit and letter of reform 
legislation. 

One of the Congressional reforms was the requirement that all regulations 
be "pre-published" in the Federal Register so that citizens should have an 
opportunity to see them and make comments before they take effect. This is no 
more than the normal procedure for regulations of the Federal Trade Com- 
mission, Food and Drug Administration, and practically all other Federal 
agencies. Selective Service regulations have for years designated all official 
Selective Service forms as regulations, thus facilitating threats of prosecution 
for failure to comply with a form as a violation of a regulation. Yet a proposed 
14-page official Form for Conscientious Objectors was not "pre-published" 
but simply "leaked" to various groups by Selective Service Director Tarr him- 
self. Confronted with a barrage of protests about the form, Dr. Tarr announced 
that it would not be released in its current form, but reiterated that it 
would be released without pre-publication. This was such a plain violation of 
the face of the law, that it is difficult to believe that it could have been 
approved even by Selective Service's own lawyers. The result was that the 
new revised form (a definite improvement) was pre-published, but, apparently 
to avoid any future impediments, the long-standing regulations giving official 
forms the status of regulations was revoked. By this devious route, the Con- 
gressional purpose of disclosure is just as effectively frustrated. 

Among the new procedural rights dictated by Congress included the right 
to bring witnesses to local board hearings, and the right to actually appear 
before appeal boards, which had previously operated completely behind closed 
doors. Yet the new regulations grant a mere fifteen minutes for an entire 
local board hearing, thereby rendering almost meaningless a right to three 
witnesses; and no minimum time at all is prescribed for appearances at 
appeal boards. To make things even more difficult, the previous 30-day time limit 
for requesting personal appearances and appeals has been inexplicably cut in 
half, to 15 days. It is interesting to note that under the administration of 
General Hershey, a previous 10-day time limit had been increased to 30 days, 
in response to many complaints that the very short period resulted in large 
numbers of involuntary waivers of rights to personal appearances and appeals. 
There are, unfortunately, many recorded instances of local boards refusing to 
honor a request which arrives even one day late, although the discretionary 
authority to do so exists. It is predictable that thousands of uninformed or 

80-620 — 72 6 



78 

poorly informed registrants will be trapped by this switch. Why is Dr. Tarr 
acting tougher than General Hershey? 

One of the most important Supreme Court Decisions of recent years was 
that of Molloy v. United States, decided in 1970 by a unanimous Court. It 
held, very simply, that a local board is compelled to reopen a classification — 
thus giving valuable personal appearance and appeal rights— whenever a regis- 
trant presents a prima facie case for a new cassification. The local board must 
reopen, the Supreme Court ruled, even if it ultimately disagrees with the 
registrant's claim. The Congressional action was in the same reform spirit, 
if anything is clear from the procedural rights which Congress sought to guar- 
antee in the 1971 Act, it is that each registrant is to be entitled to a fair 
hearing and a fair appeal, and ot to be denied access to the decision-making 
process. Yet the latest revised regulation — an earlier version wiuld have cut 
off appeal rights even more drastically — authorizes reopening only when new 
material is presented which, "in the opinion of the board" would justify a 
change. Surely Dr. Tarr and his able lawyers know the difference between a 
prima facie case and proving one's case completely. The effect of this regula- 
tion will be to bar thousands from having their cases even heard — by either 
local boards or appeal boards — unless they can first persuade the local 
board that they should prevail. This regulation, therefore, reflects resistance 
not ony to Congress, but to the Supreme Court as well. 

One further procedural right which the Senate approved, but which did 
not survive the Senate-House Conference Committee, was that registrants 
be allowed the right to be accompanied by counsel. Opponents of the right 
of counsel, including Selective Service officials, have always pointed to the 
regulations which provide for government appeal agents, usually attorneys, 
whose duties incude furnishing advice and assistance to registrants. There 
were many things wrong with the government appeal agents in theory and 
in practice, and we have not been reticent in bringing to the attention of 
Congress, the courts, the bar, and the public the anomalous and unfair re- 
quirement of divided loyalty. We suggested to Dr. Tarr that a simple solution 
would be to provide that they should serve registrants only, since local boards 
can get legal advice from lawyers at state and national headquarters. Yet, a new 
regulation simply abolishes the position of government appeal agent and sub- 
stitutes nothing in its place. The Selective Service System will undoubtedly 
contend that the regulations allow for "advisors" to registrants. But there is 
no requirement that "advisors" be attorneys or have any legal training, and, 
more to the point, the regulations do not require their appointment, but leave 
it optional. Many studies and cases have documented the total absence, invisi- 
bility, and, indeed, futility of the so-called advisors. 

That small number of men who are granted conscientious objector status 
have been made special targets of the new regulations. In an attempt to assure 
some measure of uniform treatment, and to reduce the irrationalities of some 
local board assignments, Congress directed that the two-year alternative 
service requirement be administered by the National Director, rather than 
by local boards and state headquarters. In the new regulations, however, 
virtually all of Dr. Tarr's powers have been delegated back to the State 
Directors. 

The Conference Committee rejected a provision of the Senate bill, which 
would have established a statutory right to file and have considered a con- 
scientious objector claim which matured after the receipt of an induction 
order. Recognizing, however, that there might be at least some justifiable 
cases (as various United States Courts of Appeals had held) the Conference 
Committee stated its understanding that although no change would be made 
in the law, local boards would nevertheless "have the discretionary authority 
of extending to such registrants a hearing on their late claim if the circum- 
stances so warranted." One searches Dr. Tarr's new regulations in vain for 
some assurance that the understanding of Congress will be implemented. There 
is some exceedingly obscure language in the latest revised regulation which may 
be claimed to allow for this possibility, but it defies the facts of life of local 



79 

board operations to expect that the Congressional intent will be understood and 

obeyed. . . .. 

The most outrageous regulation of all is a brand-new provision that any 
conscientious objector assigned to an alternative service job who fails "to 
comply with reasonable requirements of an employer shall be deemed to have 
knowingly failed or neglected to perform a duty required of him under 
the Miitary Selective Service Act," and "The registrant shall have failed 
to meet the standards or failed to perform satisfactorily if he did not meet 
the standards of performance demanded by his employer or of his other 
employees in similar jobs." There are no misdemeanors or gradations of 
offenses under the Act. Any violation exposes the registrant to a felony 
conviction, and up to five years in prison. To give this punitive power to a 
private employer is not only beyond anything intended by Congress, but it is 
widlly in violation of constitutional guarantees against involuntary servitude, 
criminal laws which are void for vagueness, and punishment without due 
process of law. 

A provision of this kind invokes images only of slave labor camps or of com- 
pulsory work for the state where the failure to perform a job satisfactorily, or 
failure to meet the standards of the camp commandant results in application 
of a variety of penalties. Consider the implications of this provision. It is as 
if any employer who was dissatisfied with the performance of one of its 
workers could call upon the olcal district-attorney to prosecute the worker for 
failing to fulfill the employer's expectations. Would, for example, the Selective 
Service System approve a general criminal statute which gave the foreman on 
the assmeby line of a General Motors plant the right to initiate prosecution 
against an assembly line worker who fell behind in his job of installing bumpers 
on automobiles? Can any of us really accept the idea that any employer, in 
a free society, should have the power to prosecute a worker for failing to 
meet his production standards? 

This investment of a private employer with effective criminal sanctions is 
even more dangerous when we consider the not infrequent case of a difference 
in age, life-style and political and cultural values between an employer and a 
conscientious objector employee. Are young conscientious objectors to be sent 
to jail because of a dispute about a work rule, or hair length? Disobedience 
of orders is a crime only under military law. But Dr. Tarr and his advisers 
would, without Congressional authorization, incorporate this militaristic regi- 
men into the administration of what is supposed to be a cvilan work program. 
It is unbelievable that such an unconstitutional extravaganza, common perhaps 
in totalitarian societies, could have been conceived or approved by anyone 
with an even elementary respect for personal liberty. 

Let me say in conclusion, this bundle of repressive regulations may come as 
a jolting surprise to many who welcomed the change from General Hershey 
to Dr. Tarr. But whatever the political or other reasons, the inescapable fact 
is that the Selective Service System appears to be systematically trying to take 
back a great deal of that which Congress was finally prevailed upon to 
grant. Unless public protests or court decisions force changes, the inevitable 
effect, in the words of the distinguished San Antonio attorney Maury Maverick. 
Jr., will be to "turn young people away from the courts and into the streets." 

STATEMENT OF JOHN SCHTJLZ, EDITOR, SELECTIVE SERVICE 

LAW REPORTER 

Mr. Schulz. Mr. Chairman and Senator Hart, my name is John 
Schulz. I am editor-in-chief of the Selective Service Law Reporter, 
a compilation of statutory and judicial materials and the regulations 
of the Selctive Service System. I have been in this job almost as long 
as Dr. Tarr has been at the helm over at national headquarters and 
through my office and contacts, I see simultanously developments of 
the law here in Congress, of administrative and judicial develop- 



80 

ments, and am able to see how national headquarters juggles those 
and performs under the standards of traditional Selective Service 
practices and the standards of legal craftsmanship that I am familiar 
with. 

Headquarters behavior over the past year and on into this year has 
been quite bad, as my written statement will demonstrate in some 
detail. Let me apologize for failing to prepublish my statement. I 
have bits and pieces of 10 or 12 ambitious topics all ready finished 
but the whole thing is not one piece yet. There is an awful lot to be 
added. 

It is my experience in this field, which as you realize after this 
morning is extremely complicated, that the closer you get to it the 
more the unfairness in treatment of registrants looms large, and that 
is a problem in the context of legislative hearings. 

It is boring and hard for folks to follow when you get technical, 
yet the way the Selective Service System operates, it behaves tech- 
nically and the impact of that apparently technical behavior, is as 
Dr. Tarr conceded this morning, outrageous unfairness for registrants 
and a severe burden of inefficiency for the System itself. 

My major concerns were spoken to by Mr. Karpatkin. I will go 
over them to some extent but beforehand I want to mention some- 
thing I have just learned about in the last few days. Our office has 
received in the last month three reports of tampering with regis- 
trants' files in the Selective Service System, all of which have oc- 
curred since the 1971 amendment became law. One report in great 
detail is in a court decision. It is a CO case in which the court de- 
cided after evaluating the hie that most of the reasons in the file had 
been forged and put in the file long after the decision was made and 
therefore there was no adequate reason for denial of the CO claim. 
This case called United States v. Sohieralshi was decided on the 10th 
of December, 1971, in the Southern District of New York. 

The court said in this opinion, and I quote, "What happened here 
is that the board didn't give any reason for its decision and belatedly, 
long after the even tried to straighten out the record by putting more 
papers in the file." 

There were three samples of this that the court cited to justify that 
finding. First of all, the man's personal appearance had been held in 
July 1970. There was a summary of the personal appearance in his 
file which contained a notation, "reviewed under the new guidelines 
and the board feels the registrant is not sincere." 

This statement the judge said, "I am inclined to think that that 
phrase was filled out later. It was not filled out when this form was 
submitted to the appeal board in December 1970, because I notice that 
pages two and three and four of the form each bear an appeal stamp 
but the first page does not bear that stamp." 

His inference was that that page was put in after the appeal and 
tli us lacked the stamp. 

The second was a report of information, dated July 21, 1970. This 
also did not have the appeal board stamp on it although it was in 
the file. Also it was not listed in the minutes of the action on the back 
of the registrant's classification questionnaire. 

Finally, after the registrant had refused induction and his admin- 



oo 



83 



. . ,. n-, i a. i 'function the board review can 

istrative file was completely g kind f funcdon f Hta . 

originally denied his claim i ^.g n 

report of information was j o.Jj $, fc to in a moment are 

thorough statement of reas P ^ g * . statement this morn . 

months before. g.S i=3^ System over the last 

(Ihe following comment w — ^ M St a i so think things 

quently submitted by the Se g J ^ | .3 g 1 ^ ^processing. 

Although Schulz alludes to thr< bS^^^o'^fen^S won't help 

only the SoMeralsM case > incid, W g £ • g g ft §. fc j fch 

Sobtcralski case involved the ad( o c ° a ^ > r^? s <» f f 

local board classification action £.^X ^s^-m o> &h m ^ IP suggest 



before the case was forwarded £h3 •■ c 3 ,i£ £ §.3 m **/&■ ne nas 

Such a procedure is contrary t rn « ^ a™ p "^ m += n d I ^ nilS- 

the Selective Service System. T ,£ "£ o o c ^ M £ " o ^ven 

corrected by reviews required d P-l o p^^o £ ^q g.-£ ^^ ^ 

Procedural regularity is require< 
sions. As part of the establishes 
made to assure that every proce< 

As a useful part of this sysi 
board, appeal board and admini 

carefully check each file to assure uiai evH.mims i^ui^u tv ^ ~~~„ _ 

before forwarding the case on appeal. Appeal board clerks are also required to 
carefully check each file to determine whether all steps required by the regula- 
tions have been taken whether the record is complete, and whether the infor- 
mation is sufficient to serve as a basis for the registrant's classification (32 C.F.R. 
1626.23). When deficiencies are noted, files are returned to local boards with 
requests for additional information or action. When a file is reopened for classi- 
fication purposes, the registrant receives notice. (32 C.F.R. 1625.12). 

The system works well, general instructions, or regulatory changes affecting 
over 4,000 local boards and 96 appeal boards are not warranted because one or 
more local or appeal boards commit an undetected procedural irregularity in 
effecting an indispensable system of review. 

SoMeralsJci was indicated in May 1971 — months before the 1971 amendment 
became law. Any memo dated August or July 26, 1971. could not have been a 
contributing factor in any procedural error committed prior to May 1971. (FF. 
116, Feb. 28 transcript of Senate Judiciary Subcommittee Hearing.) 

The first two documents I mentioned are particularly objectionable, 
it seems to me. They are forgeries. In fact falsifying files is a felony. 
The only way a registrant can protect himself against something like 
that is to go to his local board, inspect his file and photocopy it with 
some frequency. Obviously this is impossible and terrible on the 
nerves. Registrants frequently live nowhere near their local boards. 

Xow. under the law the Selective Service System is required to 
state reasons promptly for its decisions. It seems to me that b} r regu- 
lation it would be possible to add an additional requirement of the 
same kind that the board inform the registrant promptly of every 
notation and document of any kind placed in his file. That is the only 
suggestion I can make to deal with this sort of problem. 

The third document was accurately dated but it was included in 
the file long after the appeal. It thus could hardly contain an accurate 
account of the reasons for the board's action 6 months earlier. 

Senator Kennedy. You know, this is a very serious charge 

Mr. Scttttlz. Yes. sir. 

Senator Kennedy. Tampering around with these registrants' 
records. 

Mr. Schulz. Yes. sir. 



82 

Senator Kennedy. Do you have any indication that the National 
Board is involved in this type of thing ? 

Mr. Sct-itjlz. I will get to this. There ore two directives in the 
category of letters to all State Directors which set forth checklists of 
possible errors in files. At least one of them was to be used by local 
boards in reviewing files before they are sent to the U.S. Attorney; 
not to review files to decide whether to send them to the U.S. attorney, 
but simply prior to sending them to the U.S. attorney. 

It is suggested in the other one that matters be corrected when 
errors are discovered. It is not said how matters will be corrected and 
it may be because of that ambiguity that boards feel it is proper to 
go and make corrections themselves by stuffing new reasons into the 
file at some later date. 

In this case this statement of reasons was put in long after the 
appeal and personal appearances. The registrant had no idea of these 
reasons and cannot meet them in his administrative appeal. After his 
induction, at a time when the file was closed and when he could do 
nothing further on that file and when he was going forward to be 
prosecuted on the basis of that file, they were put in. 

I wouldn't have mentioned that except that within the same week 
I received two other letters from a New York attorney about similar 
practices with respect to two registrants also in the Southern District 
of New York. 

Now. I can't say about procedures elsewhere but three within 1 
week all apparently dealing with changes required by the 1971 act 
concerns me greatly. 

In the second case a board placed an "improved" statement of rea- 
sons in his file more than a year after it originally denied his claim. 

In the third case the registrant was taking the action that I said a 
moment ago was not possible in most cases. He had gone down at a 
lawyer's suggestion to photocopy his file. He went down on November 
26. 1072. and made a photocopy which then — on November 26 — con- 
tained an entry for December 15, 1972, at least 3 weeks later. That 
entry said that a notice of classification was mailed to him on Decem- 
ber 15. We know the importance of notices of classification and the 
date of mailing it. Now, he couldn't claim prejudice because the 
forged date was in the future but if these dates are entered in such a 
capricious manner, many people will not have even 15 days to claim 
their procedural rights. 

As I said, there are memos to all State Directors from the Office of 
the General Counsel of Selective Service — I am speaking specifically 
about a Memo to all State Directors — GC-1, of March 3, 1971, and 
GC-7, August or July 26, 1971. In the latter, which contained a 
checklist of all sorts of procedural errors and other errors such as 
lack of basis in fact or failure to state reasons. This checklist noted 
which position would permit the Government to win and which an- 
swers to were losing answers for the Government. The directive con- 
tained the statement that State Directors were to reproduce it for 
use by local boards and in reviewing individual registrants' cover 
sheets prior to forwarding them to the U.S. attorney for prosecution, 
again, there is no direct instruction in this memo that files be tam- 
pered with as a means for correcting misprocessing but it certainly 
does not authorize a local board to make a decision not to forward a 
violation case. It says that a review is to occur prior to forwarding 



83 

the case to the U.S. attorney. What function the board review can 
serve I don't understand if it is not some kind of function of qualita- 
tive improving of the file at that late date. 

This and the other matters that I will get to in a moment are 
examples of unfairness. Dr. Tarr admitted in his statement this morn- 
ing, that there was gross misprocessing in the System over the last 
several years although things are getting better. I also think things 
arc getting better, but if there has been such a severe misprocessing, 
training of members now won't help, inspection systems won't help 
for people who were misprocessed in 1969. Maybe amnesty is the 
only thing that will help. It seems to be not unreasonable to suggest 
that the Director of Selective Service make a judgment, since he has 
already conceded this is his view — that there was such severe mis- 
processing in the year or so before he took over and maybe even 
during his first year that a large number of people, an indeterminate 
number of people, went into the Army in ignorance but illegally and 
another large number of people are in some form of litigation pos- 
sibly still awaiting indictment. There are thousands of cases pending 
now which are 2 years old. There are 25,000 violation cases already 
referred to the U.S. attorney in some stage of action, most of which 
deal with events 2 years old. It seems to me that the Director might 
weJl within his present powers cancel the outstanding induction 
orders of all of these people as well as develop a meaningful program 
with the Army to identify persons who were erroneously inducted 
and possibly permit people who deserted from the Army or who left 
the country before receiving their induction order to come back under 
some sort of administrative amnesty by canceling their induction 
orders. 

I have a copy of the case with me. 

The second point is much less severe in one sense but as a structural 
matter it at least is as distressing. There was quite a bit in your col- 
loquy with Dr. Tarr this morning, Mr. Chairman, about rule 13(B) 
of the act, and the proper scope of its application. The Director indi- 
cated that there were some mistakes made, some directives which were 
regulatory in content, but issued by LBM. for example, rather than 
by regulation before he got authority to issue regulations himself on 
October 12 in Executive Order 11623. 

However, since that time he has used the practice of issuing regu- 
latory material in formats other than regulations. The most serious 
example of this is the initial establishment of the new 1-H. holding 
classification, which is a major change in Selective Service processing 
and which, by the way, has registrants all over the country terribly 
confused. We get cases all of the time from draft counselors ancl 
attorneys and from people who currently are being classified in 1-H. 
and don't know what it is about. 

When the new svstem was first proposed, a brief reference was 
made in the November 3 proposed regulations. It was then said that 
people will be place in class 1-H according to rules prescribed by the 
Director of Selective Service. No one was on notice as to what those 
rules would be. In fact, our office had some advance knowledge of 
what those rules were likely to be and were then asked by people 
where we had learned that, that it was not in the regulations. Now 
the New Registrants Processing Manual— the only copy of which 
not in captivity is now in my hand here — has a large and detailed 



84 

section, part VI, 622.18, which gives the detailed rules and standards 
for processing and classifying persons in class 1-H. 

Section 622.18. of the Registrant Processing Manual, which was 
issued without prior publication and effctive upon receipt, defines 
seven different types of registrants eligible for class 1-H and five 
types who are ineligible. This is a piece of rulemaking if there ever 
was one for as far as the personnel in the System are concerned, the 
RPM is going to be their bible from now on. They know this regula- 
tion but people outside the System have never even seen this and 
never received any kind of information from their boards as to what 
1-H. means except a brief letter accompanying their 1-H. classifica- 
tion. This is an outrageous example of the continuing practice of 
headquarters in mixing rulemaking and substantive law changes with 
its so-called nonregulations documents. 

Finally, let me say some words about the Mulloy case and its appli- 
cation to now-proposed section 1623.2 of the regulations. There is 
some kind of serious lack of legal craftsmanship at national head- 
quarters if this simple and extremely straight forward Supreme 
Court decisions can't be understood now almost 2 years after it came 
down. The regulations provide for a reopening upon presentation of 
what is called the prima facie claim. A reopening is not a decision 
whether to grant a requested classification or not. It is simply a deci- 
sion that the registrant has made some kind of showing, enough so 
that he is entitled to a complete hearing, including a personal ap- 
pearance and administrative appeal. There is no personal appearance 
and administrative appeal from a denial of reopening. Thus the 
Supreme Court said : 

"Whether or not a reopening is granted is a matter of substance, for with 
the reopening comes the right to be present personally and appeal. Therefore 
if refusal to reopen was improper, petitioner was defrived of an essential 
procedural right, and the order for induction was invalid." 

The Supreme Court language wrote a gloss on the regulation which, 
as it then stood, was phrased in discretionary terms, that where a 
registrant makes know a frivolous allegation of facts not previously 
considered by its board, and which if true, would be sufficient under 
the regulation to warrant granting a requested reclassification, the 
board must reopen the case. Several months after the Mulloy decision, 
an LBM was issued which informed the System of this important 
decision. However, that local board memorandum after quoting the 
language I just quoted, made the following additional statement, 
"Particular attention must be given to insure that local boards ob- 
serve the "if true 1 ' qualification in acting either to reopen or deny 
reopening of a classification" 

This suggests that boards are to reopen if they think the regis- 
trant's claim is true and to refuse reopening if they feel it is false. 
Now. that suggestion is a total misleading of Mulloy. That sugges- 
tion calls for exactly the kind of preliminary evaluation of the right 
to reclassification or not which Mulloy prohibits until reopening has 
been granted preliminary with the right of appeal. 

"The Government suggests that the Board may have concluded 
that the prima facie claim has been undercut by the Commissioner 
himself, by his statements, at the courtesy interview or because his 
demeanor convinced the board that he was not tellino- the truth. It is 



85 

precisely on such grounds as these that a board action cannot be pre- 
dicated 'without a reopening of classification." In other words, the 
proper interpretation of the phrase "if true", as Mr. Karpatkin said, 
is as follows : for purposes of deciding on the reopening of classifica- 
tion, the local boards must treat all of the registrant's claim as true. 
Their actual truth as well as the right to entitlement under the claim 
will be determined only after reopening is granted when the hearing 
is held. With a personal appearance at the local board, the appeal to 
the appeal board, and the personal appearance there under the new 
rules. 

When the regulations were finally amended on November third, it 
was disturbing to find that there will be no change in regulation 
1025.2, although now the Director no longer had the excuse that the 
procedure of going through Presidential Executive order was cum- 
bersome. 

Finally, as has been proposed on January 12, this regulation was 
changed. Incredibly this proposal perpetrated the confusion I have 
just suggested. It now provides that the local board will reopen the 
classification of a registrant upon written request of the registrant 
when the registrant * * * presenting facts, which in the opinion of 
the board justify a change in the registrant's classification. Here the 
words, "if true" have been replaced by, "in the opinion of the local 
board." This language is again a direct invitation to the local board 
to evaluate the truth of the evidence presented at the time of a 
person's request for a reopening. 

Mulloy, to repeat, specifically forbids this. Xor is the Mvlloy deci- 
sion based on the words, "if true." Mitlloy is bottomed rather on the 
denial of procedural process which occurs if a board denies a man's 
claim because it thinks it is not true in the guise of refusing to reopen 
and thereby bars an administrative appeal of that decision. 

And I submit that Dr. Tarr's statement today, which indicates his 
current understanding of the requirement of the Mulloy case, inter- 
preted it in exactly the same way. Of course, C. O. Claims and hard- 
ship claims and are either true or not true. If a man alleges that he 
makes so and so much money, that his relath'es make so and so much, 
that other relatives are unwilling to support his family, those allega- 
tions are true or not and those are the gist of hardship cases. If a man 
says he believes so and so about participation in a war. then whether 
or not he sincerely believes it is the ultimate question and that is a 
question of truth of his claim to believe such things. 

Finally, I would quote the final paragraph of Mr. Erickson's memo 
as Mr. Karpatkin did, he says, "It seems to me that the system has 
not been following the requirement in that final section and that if it 
were to do so. it would go along way to curing the problems under 
section 13 (B)." 

(The prepared statement follows :) 

Statement of John E. Schulz. Editor-in-Chief, Selective Service Law 

Reporter 

i. introduction 

Mr. Chairman, my name is John Schnlz. T am a lawyer and Editor-in-Chief 
of the Selective Service Law Reporter (SSLR),* a current compilation of judi- 



* The Reporter is a proiect of the Public Law Education Institute, 6th floor, 1348 
Conn. Ave. N.W., Washington, D.C. 



86 

eial, statutory, and administrative materials on the draft and the Selective 
Service System (System). I took this position in July, 1070, shortly after 
Ur. Tarr became Director of Selective Service, so that I have covered most of 
his regime. In my job, I have had a unique opportunity to observe National 
Headquarters' handling of both court decisions and statutory changes. Ac- 
cordingly, my comments will focus on the adequacy of Headquarters admin- 
is! ration during this period, particularly on facets of its informational pro- 
grams, and its implementation of the amendments to the Military Selective 
Service Act (Act) enacted by Public Law 02-120 (September 28, 1071). 

II. ADEQUACY OF INFORMATIONAL PROGRAMS 

National Headquarters (Headquarters) disseminates information to two 
major audiences — system personnel, particularly local board members and 
employees, and the public, especially draft-age young men. 

Over the last two years, performance of both these tasks has been less 
than adequate, as will be demonstrated below. Before doing so, however, 
I would like to show why it is important for these instructional programs to 
be properly administered. 

A. General Consequences of Inadequate Informational Policies 

If information is not quickly and accurately communicated to the System, 
both unfairness and administrative inefficiency will result. Thus, if local 
boards are misinformed about or left entirely ignorant of the require- 
ments of law, policy, and court decisions, their processing of registrants 
is likely to be flawed. If so, many draftees will in ignorance be inducted 
illegally, which is unfair ; those fortunate enough to be well-informed will 
seek administrative and/or judicial relief — often successfully — and thus have 
to be reprocessed. 1 This wastes both the System's and the courts' time, as 
well as that of affected registrants, who are furthermore likely to have to risk 
criminal prosecution in order to secure judicial review at all. 

If information disseminated to registrants does not accurately and clearly 
inform them about their rights and obligations, they may again be misled 
to their detriment by failing to exercise rights established by Congress. The 
consequences are then much the same as above. Further, even well-informed 
young men will be uncertain as to their duties, which is especially cruel 
in a system that makes them felons if they guess wrong. 

The remainder of this section examines in some detail crucial inade- 
quacies in Headquarters issuances and directives of all kinds. An additional 
aim of this effort is to show why the Act was amended last November to 
require important directives to be published for a period of public comment 
before becoming effective. It will become clear that most of the problems 
discussed below could have been solved if the directive embodying them had 
been "pre-published." For one thing, Headquarters would have been alerted 
to their deficiencies during the comment period. Perhaps more fundamentally, 
it would have had an inventive to devote more care, thought and attention to 
policy decisions and the drafting of adequate language to reflect them. The 
scope of this publication requirement is the subject of part III of this statement. 

Tbe following comments focus on policies and practices in use during the 
regime of the present Director, both before and after the 1071 amendments 
t-i the Miilitary Selective Service Act (Act) ; they also touch on some previous 
practices which he has not significantly modified. 

B. Failure Adequately and Promptly to Disseminate Information About Binding 
Court Decisions 

A continuing problem for Headquarters has been its failure promptly and 
adequately to inform the System of binding judicial interpretations of the 
Act and various classes of regulations. This applies both to Supreme Court 
decisions, which have nationwide impact, and Court of Appeals decisions, 



1 At thp present time, some 80% of all alleged draft violations sent by the System 
to U.S. Attorneys are washed out without indictment, frequently because local board 
procedural errors are disclosed in the file. Such cases are returned to the boards for 
reprocessing. Interview with Walter Morse, Esquire, General Counsel of the System, 
January 1072. 

As will be demonstrated below in some detail, many cases reach trial despite this 
screening, and are lost by the government because of the System's failure to observe 
binding court precedents, its own rules, statutory requirements, etc. 



87 

which are law within the multi-state judicial districts in which they are 
rendered. 

1. Supreme Court Decisions 

Among the former, the most important is Mulloy v. United States, 398 U.S. 
110, 3 SSLR 3011 (1970). There, a unanimous Supreme Court interpreted a 
System regulation so as to restrict severely local board discretion to refuse 
Co reopen a registrant's classification when he presents evidence of entitlement 
to a deferment. The relevant Regulation, 32 C.F.R. (hereinafter "R") § 1625.2 
(1967), then read: 

"The local board may reopen and reconsider anew the classification of a 
registrant ... if such request is accompanied by written information 
presenting facts not considered when the registrant was classified, which, 
if true, would justify a change in the registrant's classification . . . [Emphasis 
supplied.]" 

Under the System's classification procedures, a decision to reopen is not 
equivalent to granting the requested classification; it simply makes available 
to the registrant a full hearing on his claim, including both a local board 
personal appearance and administrative appeal. Neither personal appearance 
nor appeal is permitted from a refusal to reopen. "Thus," said the Court, 
•whether or not a reopening is granted is a matter of substance, for with the 
reopening come the right to be heard personally and to appeal. . . . Therefore, 
it the refusal to reopen was improper, petitioner was wrongly deprived of 
an essential procedural right, and the order to report for induction was 
invalid." 3 SSLR at 3012 [Emphasis supplied]. 2 

Because of the importance of reopening to procedural fairness, the Court 
wrote the following gloss upon the discretionnary language of R1625.2 : 

"Where a registrant makes nonfrivolous allegations of facts that have not 
been previously considered by his Board, and that if true, would be sufficient 
under regulation or statute to warrant granting the requested classification, 
the Board must reopen . . . unless the truth of these new allegations is con- 
clusively refuted by other reliable information in the registrant's file." [Em- 
phasis supplied] Id 

"This is not to say that on all the facts presented to it [at a 'courtesy 
interview' given to Mulloy] the Board might not have been justified in 
refusing to grant the petitioner an 1-0 classification ; it is to say that such 
a refusal could properly occur only after his classification had first been 
reopened." Id at 3013. 

Mulloy was decided June 15, 1970. Despite its major significance for all 
classification processing, no attempt was made to inform System personnel of 
it until August 11, 1970. 3 



2 Prior to Mulloy, as the opinion noted, "the Courts of Appeals in virtually every 
Federal Circuit" had ruled that reopening was mandatory on statement of a prima 
facie case. Note 3 of the Mulloy opinion sets forth such cases from 9 of the 11 Federal 
Circuits, all but the First (Northern New England) and District of Columbia (where no 
draft prosecutions are brought). Selective Service has ignored all these cases; local 
board reopening practice was thus illegal in 46 of the 50 states even before Mulloy X 

3 In contrast, a directive summarizing the results of Ehlert v. United States, 401 
U.S. 4S7, 4 SSLR 3001 (1971), was issued only two days after the decision was deliv- 
ered. Local Board Memorandum (LBM) 111, as amended April 23, 1971, "to reflect 
the opinion in Ehlert v. United States. . . ." This ruling, sustaining Headquarters' 
interpretation of another part of R1625.2. may be considered a decision favorable to the 
System, which in part explains the laudable dispatch Headquarters showed in commu- 
nicating it to personnel. LBM 111 construed Ehlert overbroadly, however, as disclosed 
by the report of the Committee of Conference on the 1971 Amendments to the Act. 
See Differnce Number 4, Hous Rep. No. 92-433, at 22 (92nd Cong. 1st Sess. 1971). 

A pattern of this sort runs through Headquarters' information practices generally. 
Cases and policy rulings favorable to System interests are disseminated promptly and 
interpreted broadly; those viewed as inimical to the smooth functioning of the System 
are formally publicized tardily or not at all. Thus, for example, in August, 1971, Head- 
quarters deciedd to reverse a July 1 directive from the Director which had ordered 
boards to continue processing odctors for Special Call No. 46 although the Doctor's 
Draft induction authority ceased at the end of June. This change in policy was never 
disseminated to the System. Only because it was discovered and reported in SSLR did 
some medical specialists learn of it, and then only those lucky enough to be in touch 
with a subscriber or reader of the Reporter. The same Is true of a similarly-motivated 
Headquarters decision to cancel induction orders issued to doctors prior to July 1 and 
postponed beyond that date. Here again, relief was granted only on a "case-by-case 
basis" upon personal application to the General Counsel's office at Headquarters. A 
pre-publication requirement would prevent this sort of low-visibility decision-maktnj?. 



88 

On this date, the System issued Local Board Memorandum (LBM) 111, the 
text of which is set forth below. 4 

This directive is flawed in two respects. First, it is couched in the form 
of an LBM rather than an amendment to the Regulations. It is a good example 
of Headquarters' failure to restrict the subject-matter of LBM's to minor 
housekeeping functions. The significance of this for purposes of amended § 13(b) 
of the Act is discussed elsewhere in this statement. 5 The use of this format 
also has an adverse impact on the System. The IBM format tends to signify 
to personnel that the message contained is of lesser authority than the Regu- 
lations themselves, and need not necessarily be followed. 6 

More importantly, LBM 111 thoroughly misconstrues the Mulloy decision. Al- 
though it properly quotes the Court's revision of R1625.2, this quotation 
is followed by the words : 

"Particular attention must be given to insure that local boards observe 
the "if true' qualification in acting either to reopen or deny a reopening of 
a classification." 

This sentence suggests that boards are to reopen if they think the regis- 
trant's claim is true and to refuse reopening if they feel it is false. Such 
a suggestion totally misreads Mulloy. It calls for exactly the sort of evaluation 
which Mulloy prohibits until reopening (with appeal rights) has been granted. 
Said the Court : 

"The Government suggests . . . that the Board may have concluded that 
the prima facie claim had been undercut by the petitioner himself — by his 
statements at the courtesy interview or because his demeanor convinced the 
Board that he was not telling the truth. . . . [I]t is precisely on such grounds 
as these that the Board action cannot be predicated without a reopening of 
the registrant's classification, and a consequent opportunity for administrative 
appeal." 3 SSLR 3013. 

The proper interpretation of the words "if true" in R1625.2 is as follows : 
for purposes of deciding whether to reopen, the local board must treat all 
the registrant's claims as true. Their actual truth, as well as their validity 
under the standards governing the requested classification, will be tested 
only after reopening, at personal appearance and on appeal. 7 



4 Local Board Memorandum No. Ill, issued: August 11, 1970. Subject: Reopening of 
registrant's classification. 

1. In the exercise of your authority under Selective Service Regulations Section 1625.2 
vou will be guided by the following language of the United States Supreme Court in 
Mulloy v. United States, 38 LW 4509, 4510 (June 15. 1970) : 

"Where a registrant makes nonfrlvolous allegations of facts that have not been 
previously considered by his [local] Board, and that, if true, would be sufficient under 
regulation or statute to warrant granting the requested reclassification, the Board must 
reopen the registrant's classification unless the truth of these new allegations is con- 
clusively refuted by other reliable information in the registrant's file." 

The above quotation, it is believed, may be fairly interpreted as defining the kind of a 
f.nse requiring reopening of a registrant's classification unless there is clear refutation 
contained in the file. Particular atteniton must be given to insure that local boards 
observe the "if true" qualification in acting either to reopen or deny a reopening of a 
classification. 

2. It is to be emphasized that the above criteria are to be applied only where new 
claims are made by registrants prior to the issuance of the order for induction. Claims 
submitted by a registrant after the order for induction has been mailed to him, will still 
be processed under the clear provisions of Section 1625.2(b) of the regulations. 

5 See Part III, infra. See also text at note 47, infra. 

6 This is borne out by a report in the Inspection Services Bulletin, a monthly publica- 
tion of Headquarters which summarzies the results of investigation of board performance 
by Operations personnel. The December 1971 issue, at page D-12, reports the results 
of inspections of 321 local boards in 2S states held in October and November, 1971. The 
reports states, "The response to LBM No. 116 and 121 has not been significant at the 
local board level." LBM 121 issued in June, 1971, established a comprehensive system of 
administrative review of results of pre-induction physical exams. It is reproduced in 
Appendix B. 

See also note 64, infra. 

7 Lower court decisions have consistently followed Mulloy in overturning improper 
refusals to reopen and "de facto" reopenings (evaluation of the merits of a claim in 
the guise of considering whether to reopen, followed bv a refusal to reopen). E.g., Ibn 
Wadud v. Laird, 5SSLR 3089 (D.N. J. 1971) : United States v. Butterfield, 5 SSLR 3094 
(D.Ore. 1971) : United States v. Joyce, 4 SSLR 3537 (D.S.D. 1971) : Roselv v. Com- 
manding Officer, 4SSLR 3522 (E.D. Pa. 1971) : United States v. Moilna, 4 SSLR 3430 
(D.N.Mex 1971) : Hall v. Riehnrris. 4 SSLR 3402, 447 F.2d 9S (9th Cir. 1971) ; Grosfeld 
v. Morris, 4 SSLR 3460, 448 F.2d 4004 (4th Cir. 1971) : United States ex rcl. Sandhagen 

(Footnote continued on following page.) 



89 

When, on November 3, 1971, the Director, under his new authority, pro- 
posed major amendments to the Regulations, interested members of the public 
were surprised to note that R1625.2 was not amended, even belatedly, to 
conform to Mulloy. Many persons so informed Headquarters. 8 As a result of 
the volume of comments, this provision was revised and reproposed January 
12, 1972. Incredibly, the newest proposal compounds the confusion apparent in 
LBM 111. The proposed Regulation now reads : 

"The local board will reopen and consider anew the classification of a 
registrant . . . upon the written request of the registrant that is accompanied 
by written information presenting facts not considered when the registrant 
was classified or [sic] 9 which in the opinion of the board, justify a change 
in the registrant's classification . . ." Proposed R1625.2 (Jan. 12, 1972). [Em- 
phasis supplied]. 

Here, the words "if true," which, when correctly interpreted, limit the re- 
opening decision to a preliminary screening of thoroughhly frivolous claims, 
have been replaced by "in the opinion of the local board." This new language 
explicitly invites the board to make the kind of overall evaluation of the 
validity of a claim (truth of evidence and application of classification stand- 
ards) which, to repeat, Mulloy specifically forbids. 

Nor was the Mulloy decision based on the words "if true," so that it can 
be disregarded by removing those words from the Regulation. It is rather bot- 
tomed on the denial of procedural due process which occurs if a board denies 
a man's claim, in the guise of refusing to reopen, without permitting him a 
full hearing and an administrative appeal. See the language quoted at note 2, 
supra. 

Mulloy has never been communicated to registrants in any informational 
brochure. The case was, however, accurately interpreted in a "Counselor's 
Manual" prepared for Headquarters by Ms. Betty Vetter, Executive Director 
of the Scientific Manpower Commission, with the help of this witness. Head- 
quarters has now decided not to issue the "Manual" to draft counselors. 

Welsh v. United States, 39S U.S. 333, 3 SSLR 3001 (1970), decided the same 
day as Mulloy, was treated by the System in a fashion quite similar to the 
latter case, except that here the delay in informing elements of the System was 
not serious. Welsh interpreted the statutory phrase "religious training and 
belief" broadly to permit registrants with moral and ethical, but not explicitly 
"religious," objections to war to qualify for conscientious objector (CO) 
status. The major problems with LBM 107 (July 6, 1970)— again an LBM was 
issued in lieu of an amendment to the Regulations — was its unwarranted 
interpretation of the Welsh decision. This matter was treated at length in an 
article by Dr. Bela Silard published in SSLR. A copy is reproduced in Appendix 
A to this statement. 10 



v Eherhardt. 4 SSLR 3351 (N.D.Ga. 1071) ; Untied States ex rel. Hulslnga v. Command- 
ing Officer. 4SSLR 3317, 446 F.2d 124 (8th Cir. 1971) ; United States v. Reeves, 4 SSLR 
3366 (M.D.Fla. 1971) ; United States v. Bray, 4 SSLR 3265 (9th Cir. 1971) ; Barker v 
Hershey, 4 SSLR 3352 (W.D. Wis. 1971) ; United States v. Krueger, 4 SSLR 323 (N.d! 
111. 1971) ; United States ex rel Mulford v. Commanding Officer, 4 SSLR 3150 (E D 
N.Y. 1971) ; United States v. Brady, 4 SSLR 3126 (D. Mass. 1971) ; United States' v* 
Ball. 4 SSLR 3044. F.2d (7th Cir. 1971) ; Fallon v. Local Board No. 11 4 SSLR 
3042 (W.D. Wis. 1971). These decisions were published in SSLR during' the eight 

month period from April to December, 1971. 

The most significant application of Mulloy has been to medical claims, since more 
registrants qualify for medical disqualification than for any other deferment or exemption 
More than 50% of all registrants are found medically unfit, while around only 
1% even file CO. claims. System elements have consistently followed the practice of 
forwarding all medical claims to Armed Forces Entrance and Examining Stations 
(AFEES) for disposition, although local boards and their medical advisors have the 
power under the Regulations (Part 1628) to pass on these cases. The Courts of Appeals 
for the First and Ninth Circuits, whose decisions are binding in New England and 




States v. Butterfield, 5 SSLR 3094 (D. Ore. 1971). 

8 SSLR maintains a public file of copies of comments submitted to Headquarters on 
regulatory amendments proposed under § 13(b) of the Act. These are available for in- 
spection by the Subcommittee if desired. 

9 T , f }- his ™2 r ", is not a typographical error, then there is no problem with the new 
regulation. The 'or seems to make no sense in context, however, consequently, it will be 
ignored in the discussion which follows. 

«> Predictably, courts have begun to invalidate local board denials of CO claims based 

P? o ii% Un T aUt ^ 0rli;ed K Cr io P T r i a o^ tabllshed by LBM 107 - See - e -S- United States ex rel. 
m g Colo I97^ r - a ^' 5 SSL * S075 > < N ,£- ° hl ° ! 972 > ! «/• Kern v. Laird, 4 SSLR 3776 
(D. Colo. 1971) ; Moore v. Dalessio, 5 SSLR 3068, 302 F.Supp. 926 (D. Mass. 1971). 



90 

Registrants were informed of Welsh in the System's brochure, "CO," but 
Form 150, Special Form for Conscientious Objectors, has not yet been 
amended to take the decision into account, although nearly two years have 
elapsed since ii was issued. 11 

2. Orders in Class Actions 

Perhaps most blatant of all cases of administrative disregard of relevant 
judicial decisions is the System's tendency to ignore orders in class actions 
to which the Director and/or other System officials are parties. The major 
example of this involves the case of Gregory v. Hershey, 2 SSLR 3524, 311 
F. Supp. 1 (E.D. Mich. I960). 12 The judgment in Gregory, 2 SSLR 3004, 51 
F.R.D. 188 (E.D. Mich. Feb. 1970), ordered the Selective Service System to 
reclassify into Class III-A all registrants who demonstrated that they have 
a child or children with whom they maintain a bona fide family relationship in 
their homes . . . are not physicians, dentists or veterinarians or in an 
allied specialist category . . ., and . . . have not received an undergraduate 
II-S deferment under Section 6 (h) (1) of the Military Selective Service 
Act of 1967 . . ., but . . . have received a graduate II-S deferment under 
Section 6(h) (2) of that Act. 

The System apparently took no steps to heed this order, arguably thereby 
putting itself in contempt of court. Not surprisingly, registrants who estab- 
lished that they were members of the class were able to have their inductions 
barred on the basis of Gregory. 13 When Gregory was later overturned by the 
Court of Appeals for the Sixth Circuit, 14 the Government moved to dissolve 
the orders in these later cases. 15 

The motions failed, since the ultimate fate of Gregory did not excuse the 
Systems failure to abide by it while it was law. Said Judge Urbom in Whitmore, 
quoting Schrader in part : 

Plaintiff contends that when the National Director took no action to comply 
with this order of the District Court [in Gregory], he acted lawlessly ... I 
agree. 

If the National Director disagreed with the position of the District Court 
in Gregory, his sole remedy lay in the Sixth Circuit Court of Appeals. Until 
the judgment of the District Court was reversed, the National Director was 
bound by it and by its direct order to reclassify to class III-A anyone who 
made a showing that he was a member of the Gregory class. To totally ignore 
this order while it was in effect constituted lawlessness. 

A fundamental concept recognized consistently by the Supreme Court . . . 
is that judicial orders shall not be disobeyed, "no matter how well-founded their 
doubts might be as to their validity." [Citations omitted.] The Rule of Law 
dictates that the orderly processes of the judicial system must be preserved 
against acts . . . which lessen the efficacy of the courts . . . 

That the ignoring or violating of a judicial order is by a member of the 



11 Three years went by before former Director General Hershey modified Form 150 to 
take into account Seeger v. United States, 3S0 U.S. 163 (1965). A new form 150 was 
finally proposed January 12, 1972. It is not yet in effect. Once again, judicial invalida- 
tions' of induction orders based on the misleading language of Form 150 are beginning 
to appear. E.g., United States v. Van Cleve, 4 SSLR 3494 (D. Minn. 1971). Cf. United 
States v. Taylor, 4 SSLR 3552. 44S F. 2d 349 (5th Cir. 1971) (en banc decision affirming 
ruling that petitioner acted "unreasonably" in failing to press CO claim because of Form 
150's misleading language; three judges dissented). Similar consequences followed the 
long delay in revising Form 150 to reflect Seeger. E.g., United States v. Buckles, 3 SSLR 
3883 (N.D. Cal. 1971). 

15 Gregory was reversed a year alter sub, nom. Gregory v. Tarr, 3 SSLR 3682, 436 
F.2d 513 (6th Cir. Jan. 1971), but as the discussion in text will show, this did not 
validate local board action taken between February 1970 and January 1971 in violation 
of the district court's order. 

"Schrader v. Local Bd. No. 76, 4 SSLR 3694 (W.D. Wis. 1971) ; Whitmore v. Tarr. 
3 SSLR 3734, 318 F. Supp. 279 (D. Neb. 1970). These cases granted relief prior to 
induction, under the narrow judicial exception the Supreme Court has carved out of the 
bar to preinduction judicial review in § 10(b) (3) of the Act. This exception is allowed 
only where an element of the System acts in a "blatantly lawless" manner. See Oester- 
reich v. Local Bd. No. 11, 393 U.S. 233, 1 SSLR 3215 (1968). (In the period April- 
December 1971, SSLR published about 400 draft cases. About 50 of these sought pre- 
induction review : it was granted in 17. Citations are available on request.) 

14 See note 12, supra. 

15 Schrader v. Local Bd. No. 76, supra; Whitmore v Tarr, 4 SSLR 3796 (D. Neb. 
1971). 



91 

executive branch of government does not alter the necessary rule. . . . The 
only protection the judicial branch has against impingement upon its authority 
by the executive branch, other than the traditional contempt power, is 
to refuse enforcement in the courts of official actions taken in contravention 
of judicial power. . . . 

Accordingly, I hold that the order of the local board . . . was void when 
issued. . . . [Emphasis supplied.] 4 SSLR at 3795. 

3. Court of Appeals Decisions 

Headquarters has paid even less attention to Courts of Appeals rulings 
than to those of the Supreme Court, as was already noted in the discussion 
of Mulloy, supra. 16 This is understandable where only one or two of the 
eleven Courts of Appeals have adopted a particular position, although even 
in such cases compliance with minority rules is indicated within the multi- 
state judicial circuits involved. But where all or nearly all have taken the 
same position, the System ignores such widespread authority at the risk of 
numerous needless prosecutions and other litigation, attended, as indicated, 
by both inefficiency and unfairness. Such has been the experience, for example, 
under the judicial requirement, now adopted in substantial form by ten 
circuits, 17 that draft boards state reasons for denying prima facie deferment 
claims. 18 A quick count of the decisions published in SSLR between May 1971 
and January 1972 discloses some 30 cases in which defendants were acquitted 
or their conviction reversed because their board failed to state reasons for 
denying prima facie CO claims. 19 The time spent by registrants, government 
attorneys and the courts on these cases was all wasted ; defendants were 
exposed to the anxiety of prosecution and the uncertainty of a criminal defense 
to vindicate their position. How many others entered the service either in 
fear of losing the gamble of prosecution or in ignorance of the errors made 
by their boards? Assistant Attorney General Robert Mardian, responsible for 
prosecution of all Selective service violations, stated in his February 23, 1972, 
letter to Senator Kennedy, that 80 percent of all registrants who refuse 
induction eventually agree to submit. Pressure from F.B.I, agents and U.S. 
Attorneys undoubtedly plays a large role in such decisions. Certainly no 
registrant has received word from the System that boards were required to 
tell them why their CO claims had been turned down over the last two years. 

Many as-yet-unindicted cases must be infected with this flaw. In fact, 
Headquarters has belatedly begun to issue directives providing for review of 
files for errors of this sort. 20 This system of review, lodged primarily with 



10 See note 2, svpra. 

" See United States v. Edwards, 4 SSLR 35S3, 450 F.2d 49 (1st Cir. 1971) ; United 
States v Lenbard. 3 SSLR 3532, 437 F.2d 936 (2d Cir. 1970) ; Scott v. Commanding 
Officer 3 SSLR 3277, 431 F.2d 1132 (3rd. Cir. 1970) ; United States v. Broyles, 2 SSLR 
SoQ^ 423 F 2d 1299, 1305-06 (4th Cir. 1970) ; United States v. Stetter, 4 SSLR 3199, 
445 F2d (5th Cir. June 1971) ; United States v. Washington, 1 SSLR 3008, 392 F.2d 37 
(6th Cir. 1968) ; United States v. Lemmens, 3 SSLR 3185, 430 F.2d 619 (7th Cir. 1970) ; 
Caverlv v. United States, 3 SSLR 3194, 429 F.2d 92 (8th Cir. 1970) ; United States v. 
Haughton, 2 SSLR 3173, 413 F.2d 736 (9th Cir. 1968) ; United States v. Andrews, 4 
SSLR 3345, 446 F.2d 1086 (10th Cir. July 1971). Contra: Gruca v. Sec'y of the Army, 
3 SSLR 3372, 436 F.2d 239 (D.C. Cir. 1970). It has already been noted that almost no 
draft cases arise in the District of Columbia because no AFEES is located there. Thus, 
judicial statement-of-reasons rules were in effect in nearly all 50 states by the time 
Congress added a simialr legislative requirement in Pubilc Law 92-129. In addition, in 
June 1971, the Supreme Court decided Clap v. United States, 403 U.S. 698, 4 SSLR 3258, 
in which the famous boxer's conviction was overturned in part because the appeal board 
failed to state reasons for denying his CO claim. 

18 The exact scope of these judicial rules is prospectively immaterial in light of the 
1071 amendments to the Act, requiring statements of reasons on request in all cases, and 
the System's praiseworthy decision to provide such reasons automatically. Retrospective 
application is, however, of importance. At least one Circuit has held its statement of 
reasons rule to have fully retroactive effect. United States v. Crownfield, 3 SSLR 3833, 
439 F.2d 839 (3d Cir. March 1971). 

19 Full citations of these cases are available on request. 

20 Memorandum to All State Directors GC-1 (Mar. 31, 1971), revised and expanded 
in MASD GC-7 (July 26, 1971). MASD GC-1 lacks specific instructions and may not 
have been used by local boards. GC-7, however, was reproduced for local board use. Note 
that neither was issued for the purpose of alerting board members to the requirements 
for processing current cases. 



92 

System Regionals Counsel, is only now (February 1972) approaching full 
operation. 21 

4. Improper Responses to Judicial Requirements 

Some local boards personnel seem to believe that this problem can be 
corrected simply by placing statements of reasons in files at this time, irres- 
pective of the appeals status of the registrants involved. Four examples of 
improper inclusions in files have come to my attention in the last month. 

A very recent district court decision in a CO case discloses several instances 
of tampering with a registrant's file. Judge McLean, in US. v. Sobieralslci, 

5 SSLR 3175 (S.D.N.Y. 1972), acquitted a defendant for lack of basis in 
fact and his board's failure to state reasons for denial of his claim. The judge 
found : 

"What happened here is that the board didn't give any reason for its 
decision and belatedly, long after the event, tried to straighten out the record 
by putting more papers in the file." 

Specifically, he detected two "forgeries." First, the summary of the regis- 
trant's personal appearance, held in July 1970, contained the notation "Re- 
viewed under new guidelines and the Board feels the registrant is not sin- 
cere." Of this the judge said : 

"I am inclined to think that that phrase was filled out later and was not 
filled out that way when this form was submitted to the appeal board in 
September [1970], because I notice that pages two and three and four of the 
form each bear the appeal board's stamp dated September 1 ; but the first 
page, where this rather inadequate reason is given, does not bear that stamp." 

The second questionable document was a "Report of Information" (SS 
Form 119) dated July 28, 1970. This also lacked the Appeal Board stamp and 
was not noted in the local board "Minutes of Action" on the back of the 
registrant's classification questionnaire, where such documents should be 
entered. There was an entry dated "July 28" on the classification questionnaire ; 
it read "Registrant not sincere" and it appeared to Judge McLean "to have 
been filled in at a different time." 

Finally, after the registrant had refused induction on December 15 — some 

6 months after his appeal — another Report of Information was put in his file 
setting forth a somewhat more coherent, if legally inadequate statement of 
reasons for the decision : 

"Tbe board sustained the original decision to deny a CO classification for 
the following reason : the registrant did not sign series 8 of SS100 when he 
registered. He accepted a 2-S classification for almost six years. He attempted 
to receive a deferment for occupation and when that failed, he claimed CO 
status as a last resort in trying to avoid the draft. Therefore, the board 
feels his request for a CO was a matter of expediency. . . ." 

No attempt was apparently made to "predate" this document. 

The first two interpolated documents are particularly objectionable, since 
they were designed to give the (false) impression that they had been placed in 
the file in a timely manner. Making fictitious entries in files is a felony under 
Section 12 of the Act, in fact. The only way a registrant can protect against 
this sort of fraud — if he is lucky enough to be aware of the need for protec- 
tion — is to examine and copy all documents in his file at frequent intervals. 
Such a course is manifestly oppressive since many registrants live far from 
their local board. Boards should be required to inform registrants promptly 
of every notation and document placed in their file, not just of reasons for 
decision." 



a Interview with Walter Morse, Esquire, General Counsel of Selective Service, January 
1972. And the adequacy of this effort is doubtful. As of December 1971, only twelve (12) 
Regional Counsel were on the job ; they were responsible for review of some 20,000 
reported violations nationwide. Id. For example, Messrs. Williard Silverberg and Paul 
Ostien were responsible for all cases in Connecticut, Delaware, D.C., Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York City. New York State, Penn- 
sylvania, Puerto Rico, Rhode Island, Vermont, Virginia, Virgin "islands, and West Virginia. 
Id. Mr. Morse concluded that few cases are as yet actually reviewed by Regional 
Counsel. Id. 

22 A judicial requirement already exists that boards inform registrants of adverse 
matter included in their files. See note 23, infra. Because it is difficult to determine 
what might be considered adverse, the System should adopt a broad rule requiring 
notification of all submissions. R 1622.1(c) directs boards to receive and consider all 
peritnent information presented to it. The potential oppressiveness of this problem 
is illustrated in an exchange of correspondence between Senator Hartke and Dr Tarr 
in which the Director rejected the Senator's suggestion that registrants be informed 
of such submissions. See Appendix C. 



93 

The third document at least was apparently not inaccurately dated, but it 
still is a falsification of the files, since it hardly can be an accurate statement 
of the reasons for the board's decision six months earlier. Its tardy inclusion in 
the file meant the defendant had no opportunity for a hearing or administrative 
appeal during which to meet the new reasons. Since the file cannot be supple- 
mented at trial, such a procedure violates due process in much the same 
manner as an arbitrary denial of reopening. See Mulloy, supra. 23 

A similar fraud was practiced in a recent ease in Maine, United States v. 
Proulx, Or. No. 5352, according to a memorandum filed by the U.S. Attorney 
on March 1, 1972. Here the goal was apparently to give a semblance of com- 
pliance with the Ford decision, discussed above in note 7. Proulx' file contains 
a medical letter dated Nov. 3, 1970. Typed across the top is the entry "Re- 
viewed by local board 11/4/70 recommend evaluation by AFES [sic] (Armed 
Forces Examining Center)." In fact, the board did not even receive a copy 
of this letter until after Proulx' preinduction examination on Nov. 5, 1970. 
A copy of this letter is in Appendix D. 

A New York attorney has just sent me correspondence about another young 
man whose board placed "improved" statements of reasons in his files more 
than 1 year after originally denying his claim. 

The fourth case involves a registrant who photocopied his file on November 
26. 1971. The 'minutes of action" then contained entries showing mailing 
of a notice of classification (Form 110) on December 15, 1971 — almost a 
month later. The date of mailing his Form determines the cut-off point for 
appeal rights. Frauds here are fraught with unfairness. 

In MASD GD-7, State Directors were instructed to reproduce the checklist 
for use by local boards in reviewing individual registrants' cover sheets prior 
to forwarding them to the United States Attorneny for prosecution. 

This language invites improper board action. It does not state that boards 
are to review files in order to decide whether to forward cases for prosecu- 
tion, but rather to review them "prior to forwarding them," an apparently 
ministerial act. What can this sort of review accomplish except to permit 
tampering with documents in the file? The checklist facilitates this for it 
conveniently indicates which features of the file indicate "possible error in 
government's case." To complete the picture, MASD GC-7 states that the 
checklist should be forwarded with the file to the United States Attorney for 
information and use, out shall not become a part of the registrant's caver sheet. 
[Emphasis supplied.] 

Copies of these Memos and the Sobieralski case are included in Appendix D. 

In this section I have investigated the System's failure to take prompt and 
adequate account of binding court decisions. I must also mention one sort of 
prompt and effective, yet questionable, response the System occasionally 
has made under the current Director. This is simply to change or remove the 
regulatory language upon which courts have based their decisions. As pre- 
viously noted, the recent proposed revision of R16252 may have been designed to 
avoid the impact of Mulloy, by deleting the words "if true." 23a 

More importantly, in one two-and-one-half week period in late 1970 (August 
26 to September 9), Headquarters (1) abolished the requirement that local 
board members reside in the area served by their board ; 24 (2) made the medical 
interview a matter of discretion rather than right; 25 and (3) abolished '^re- 
classification" interviews in CO cases. 26 

=3 See United States v. Speicher, 3SSLR 3S50, 439 F. 2d 104 (3d Clr. March 1971) ; 
United States v. Calderaro, 3 SSLR 3827 (D. Ore. 1971). Alternatively, this and the other 
interpolations may be viewed as adverse submissions to the registrant's file. Under 
settled principles, failure to notify men of such inclusions in their files is a denial of due 
process. Gonzales v. United States, 348 U.S. 407. 415 (1955) ; e.g., United States v. 
Abbott, 2 SSLR 3561, 425 F.2d 910, 913n (8th Cir. 1970) ; United States v. Cummins, 

2 SSLR 3655, 425 F.2d 646, 649 (Sth Cir. 1970). 
23a g ee text between notes 9 and 10, supra. 

2 * Executive Order (E.O.) 11555 (Sept. 2, 1970), amending R1604.52 (c). A court had 
just ruled that violation of this residency requirement invalidated induction orders. 
United States v. Cabbage, 3 SSLR 3179, 430 F.2d 1037 (6th Cir. July 1970). The rule 
was designed, of course, to insure that boards were made up of "little groups of neigh- 
bors," or originally intended. 

25 E.O. 11553 (Aug. 26, 1970), amending R162S.2. A court had just announced itself 
ready to enforce this right. United States v. Ehret, 3 SSLR 3176, 431 F.2d 1146 (9th 
Cir. August 1970) (dictum). 

28 Local Board Memorandum (LBM) No. 41, which provided for these, was rescinded 
August 27, 1970. A court had just held mandatory this provision United States v. Davila, 

3 SSLR 3089, 429 F.2d 481 (5th Cir. July 1970). This interview had supplanted a 
Department of Justice investigation of CO claimants relied on by boards prior to the 
1967 amendments to the Act. Boards need ample opportunity for personal scrutiny of CO 
claimants in order to evaluate their sincerity. 

80-620 — 72 7 



94 

This sort of response to court decisions does not appear to reflect the balanced 
judgment which should guide decisions to change the rights accorded by the 
Regulations. At all event, it should scotch any suggestion that Headquarters' 
failure to amend the Regulations to conform to decisions such as Mulloy 
(.mid he blamed on the difficulty of issuing amendments by Presidential Exec- 
utive Orders, and then required. 263 - 

5. The Significance of this Problem 

Mr. Chairman, you may wonder why I have examined this problem in 
such detail. After all, it is commonplace for administrative agencies to ignore, 
interpret narrowly or even occasionally announce "nonacquiescence" in judicial 
decisions, particularly those of the lower courts. The practices of the Internal 
Revenue Service come immediately to mind. 

In the first place, it is highly doubtful that other agencies have treated 
Supreme Court decisions as lightly as the System did Mulloy. But more im- 
portantly and more generally, judicial review of administrative processing 
and decision-making by the System is radically more restricted than of 
other agencies' actions. Preinduction review is barred in almost all cases by 
§ 10(b) (3) of the Act. As a result registrants must either violate the Act and 
undergo felony prosecution, or actually submit to induction, before courts will 
inquire into the legality of their processing. This is so although board error 
are by no means uncommon, as pointed out earlier, 27 and the System's orders 
deprive young men of liberty and may even threaten life. 

Furthermore, a judicial doctrine requiring exhaustion of administrative 
remedies will bar review altogether (even in criminal cases) where registrants 
have failed to take administrative appeals from adverse local board decisions. 
The exhaustion bar is applied although such appeals are by no means re- 
quired (in fact, the case can be made that the System discourages appeals, 
e.g., by severely curtailing the time given to registrants to claim them), and the 
System does not inform registrants of these consequences of failure to 
appeal. 273 

Finally, as mentioned earlier, discrepancies between directives and court 
decisions are a prime example of the sort of problem the prepublication re- 
quirement was designed to deal with. See Part III, infra. 

C. Other Qualitative Problems with Official Directives 

1. Lack of Legal Craftmanship 

Mr. Chairman, as a lawyer I am frequently dismayed at the extent to 
which formal Headquarters regulatory directives must be considered flawed 
according to the standards of legal craftsmanship. Three types of draftsman- 
ship problems are prevalent: (a) excessive ambiguity, obscurity and com- 
plexity of phrasing; (b) serious gaps in treatment of particular topics and 
other negligent errors; (c) inconsistencies and conflicts within and between 
classes of directives, and between the Act and regulatory materials : In impact, 
these kinds of errors resemble those already discussed : both administrative and 
judicial inefficiency and gross unfairness to registrants flow from them. 
And, to repeat, such flaws could be detected and corrected if these directives 
were prepublished. 

(a) A prime example of both ambiguity and obscurity may be found in 
R1631.6 (formerly 1631.7) and LBM 99, the regulations which establish and 
regulate the "random selection" system. 2S Confusion here is particularly un- 
fortunate since one of the President's major pustifications to Congress for 



Ma £pe text at note 58a, infra. 

27 See note 1, supra. 

27a This matter is discussed in more detail below. See text at note 57, infra. 

= a In 1960 Congress authorized the President to establish such a system for determining 
which young men will be inducted, since the Army needs only a fraction of the available 
manpower pool. P.L. 91-124 (Nov. 26, 1969). Congress did not, however, dictate the 
form the lottery system was to take. Consequently current R1631.6 was promulgated 
to define the current system, in effect functioning as its "statutory" basis. LBM 99, 
which implements R1 631.6, functions as a Regulation. The current text of both regula- 
tions is in Appendix E. 



95 

seeking authority to institute random selection was that it would enable 
young men to know their draft liability with some certainty. 29 

The major ambiguity in these regulations lies in a proviso setting forth 
the circumstances under which registrants continue to be liable for induction 
beyond the normal cut-off point. 30 It reads : 

[M] embers of the Extended Priority Selection Group who would have been 
ordered to report for induction to fill the last call in the first quarter of the 
calendar year but who could not be issued orders shall remain in the Extended 
Priority Selection Group and shall be ordered to report for induction as soon as 
practicable. Circumstances which would prevent such an order shall include 
but not be limited to those arising from a personal appearance appeal, pre- 
induction physical examination, judicial proceeding, or inability of the 
local board to act. R1631.6(d) (5) proviso. [Emphasis supplied.] 

The obvious question is what the phrase "inability of the local board to act" 
means since the enumeration of events preventing induction is not exclusive and 
no ejusdem generis rule 31 can be extracted from it to guide interpretation of 
this more general phrase. Most of the specifically enumerated items are delays 
instituted by or at the instance of the registrant, but not all {e.g., preinduction 
examination. 32 

Not surprisingly, this problem has already stirred up a significant amount of 
litigation. 33 

The decisions predictably go in all directions, and one court has questioned 
the propriety of basing a felony prosecution on such an ambiguous regulation. 34 
In United States v. Born, 35 the most recent decision, Chief Judge Fox granted 
defendant's motion to dismiss his indictment for failure to report for induction 
on June 21, 1971. Born had been originally ordered in January 1971, but the 
State Director subsequently ordered his board to reopen his case because it had 
committed procedural error. The judge concluded that this kind of delay was 
not within the sense of the phrase "inability of the local board to act." Said he, 

The language to be construed is anything but precise ... In Smith v. Tarr 



29 See the President's Congressional message recommending creation of a lottery 
system, reprinted with commetns in Hearings on Bills to Amend the . . . Act ... to 
Authorize Modifications of the System of Selecting Persons for Inductions . . . Before 
the Special Subcommittee on the Draft of the House Armed Services Comm. 4486-87 
(91st Cong. 1st Sess. 1969) (H.A.S.C. No. 91-19) : 

2. Reduce the period of prime draft vulnerability — and the uncertainty that 
accompanies It— from seven years to one year, so that a young man would normally 
enter that status during the time he was nineteen years old and leave it during the 
time he was twenty. 

so This cut-off point is normally April 1 of the year after the year of prime exposure 
for men whose lottery numbers had been "reached" but who were not yet inducted. 
Under the new "national" call, this group promises to number in the hundred of thou- 
sands. EPS Group B has 115,000 members according to SSS News Release No. 72-3 (Feb 
8, 1972). 

31 A rule of statutory construction to the effect that general words following an enum- 
eration of specific things are usually restricted to things of the same kind (ejusdem. 
generis) as those specifically enumerated. 1 Bouvier's Law Dictionary 979 (8th rev by 
F. Rawle 1914). 

32 Perhaps in recognition of the problems with this provision, LBM 99 was amended 
Nov. 10, 1971, to limit overall liability under this provision to 270 days of continuous 
"availability." A registrant is "available" when not deferred or involved in personal 
appearance or appeal and when his preinduction examination is completed. Even with 
this "limitation" this extension of liability arguably violates the President's originally 
expressed intention to give all registrants a brief, clear-cut period of liability under 
the lottery system. See note 29, supra. 

33 Two Court of Appeals decisions on particular points have already been rendered 
Smith v. Tarr, 4 SSLR 32S0, 444 F. 2d 251 (2d Cir. 1971) ; Lawton v. Tarr, 4 SSLR 
3374, 446 F.2d 7S7 (4th Cir. 1971). See also Schemanski v. Tarr, 4 SSLR 3618 (N D 
111. 1971). 

»* Under the Due Process clause of the Fifth and Fourteenth Amendments, overly 
vague criminal statutes are invalid because they do not give sufficient notice of the scope 
of proscribed conduct. The classic case is Lanzetta v. New Jersey, 306 U.S. 451 (1939). 
Somewhat similar standards should be applied to Selective Service regulatory provisions 
governing issuance and validity of induction orders. 

Of course, judicial review is also available through habeas corpus after induction, at 
least for men who are not CO's. But a majority of cases of erroneous classification/pro- 
cessing probably involve CO's. More significantly, submission to induction imposes burdens 
not dissimilar from criminal incarceration — which explains why the habeas remedy is 
available to test the legality of military custody. 

35 5 SSLR 31S5 (W.D. Mich. Feb. 18, 1972). 



96 

. . . the court construed the Language . . . '"not a model of clarity" . . . Here, 
substantial delay beyond the regulation deadline was prompted ... by con- 
cedely irregular, unjustifiable and lawless conduct on the part of the local board. 
Is the regulation presently before the court to be construed to place the burden 
of criminal sanctions upon the registrant in such circumstances? This court 
thinks not. 5 SSLR at 3186. 

R1631.6 and LBM 09 also exemplify the obscurity characteristic of some regu- 
latory material. As the reader will have noted from the previous example, the 
lottery svstem is hardly a model of simplicity and clarity. For example, regis- 
trants may be placed in the "First," "Second" or "Third Priority Selection 
Groups" (next year, the "Fourth," the following the "Fifth," and so on, until 
age 26), or no group (if deferred), or the "Extended Priority Selection Group, 
Subgroup A" (if available and in the First Priority Group on December 31, 
1970, with a "random sequence" (lottery) number from 1 to the top number, 
not exceeding 195, "reached" by their own local board during 1970) or "Sub- 
group B" (if available and in the First Priority Group on December 31, 1971, 
with a lottery number from 1 to 125, irrespective of the top number actually 
reached by their own boards in 1971) : 36 a First Priority Group registrant's 
number is "reached" if the board called young men with lottery numbers equal 
to or higher (numerically larger) than his from the First Priority Group some- 
time during the year, whether or not he was then available or even in the First 
Priority Group at all at the time. So it goes. 

The lottery system is in fact so complex that not only registrants but even 
Headquarters and local boards make mistakes trying to follow it. For example, 
LBM 99 itself states that men who are not inducted from and thus (eventually) 
leave the Extended Priority Group (Subgroup A or B) are to be placed in the 
Second Priority Group, Para. III.F. This is wrong. R1631.6 provides in per- 
tinent part 

Members of the Extended Priority Selection Group who have not been issued 
orders to report for induction . . . shall forthwith be assigned to the lower pri- 
ority selection group to which they would have been, assigned had they never 
been assigned to the Extended Priority Selection Group .... R1631.6(d) (5) 

Applying this language to the definitions of Subgroups A and B above, it can 
(with some difficulty) be demonstrated that men who leave Subgroup A this 
year should be transferred to the current Third Priority Selection Group. No 
registrant in the Third Priority Group can be inducted until all 400,000-odd 
members of the Second Priority Group are called, a fact which is currently of 
little importance but could make a big difference in future years. 37 

Draft attorneys consistently report local board errors in priority group place- 
ment. In fact, it is common for counselors to advise registrants to inspect their 
files after year's end to determine what priority group their board has placed 
them in. 

Perhaps the most obscure of all Regulations is the proviso in proposed 
R1625.2, another part of which was discussed above in connection with Mulloy. 
According to Headquarters, 38 this proviso, set forth in full below, authorizes 
registrants whose outstanding induction orders have been postponed to have 
their classifications reopened under the standards applicable to claims filed 
before issuance of induction orders, rather than under the more severe standard 



36 Or, next year, Subgroup C. . . . The Director is reportedly currently considering 
reuniting the elements of the Extended Priority Selection Group, which was alpha- 
betically subdivided by the November 1971 amendments to LBM 99. This amendment 
Is arguably unauthorized, since R1631.6 makes no provision for significant extensions of 
draft liability. 

37 Other Headquarters' misreadings of E1631.6 may be found in example 4 of LBM 99 
and a sample letter to members of Extended Priority Group B attached to Letter to All 
State Directors 00-50 (Dec. 14, 1971). 

^SSS Press release No. 72-1 (Jan. 12, 1972). It summarizes the effect of the priviso 
even more simply than the discussion below : 

A registrant who receives a postponement of induction authorized by a state director 
or the National Director, or issued in order for the registrant to complete a school term 
or academic year, will be able to receive consideration for a classification change until 
30/40 days prior to his actual induction date. 



97 

generally applied to post-induction order claims (i.e., no reopening unless the 
registrant can demonstrate "a change of status due to circumstances beyond 
his control"). This less stringent standard will be applied only to postponements 
by the National Director or a State Director or under the sections of the Act 
which require postponements to permit high school or college students to com- 
plete a school term, and only until 30-40 days before the date finally scheduled 
for induction. The proviso follows : 

Provided, that in the event of paragraph (d) or (e) of this section [reopening 
by local board on request of registrant or motion of board! the classification of 
a registrant shall not be reopened after the local board has mailed to such a 
registrant an order for induction or alternate service or, in the event the order 
to report for induction or alternate service was postponed and a subsequent 
letter from the local board established the date for induction or for reporting 
for alternate service, unless the local board first finds there has been a change 
in the registrant's status resulting from circumstances over which the registrant 
has no control. 39 

Alan Dranitzke, who proceeded me as editor of the Selective Service Late Re- 
porter and is now an attorney here, found the above proviso so confusing that 
he could not make use of it in appellate argument in a draft case of his. He 
despaired of being able to convince the Court of Appeals that it means what 
the press release says. 40 

Nor is the new Registrants Processing Manual, designed to be simple enough 
for laymen, without its obscure points. For example, it lacks specific cross ref- 
erences, simply directing that so-and-so processing point be handled according 
to "current directives." At this time of flux not even this witness is sure what 
directives are current. 41 

(b) Many recent regulatory issuances seem to reflect hasty and incomplete 
preparation. Often there will be serious gaps in coverage, necessitating revi- 
sions and promulgation of explanatory directives. For example, original 
R1631.6 and LBM 99 did not provide for periods of "zero" draft calls, such as 
most of the last nine months. As a result, Headquarters has had to devise 
ad hoc procedures for juggling the 11.000 men not yet inducted from last 
year's Extended Priority Group (A) and all 115,000 men in this year's Group 

39 Actually to be complete, this proviso must be read in conjunction -with proposed 
R1632.2, Postponement of Induction, although no cross-reference is given in either pro- 
vision to suggest this. The latter provision provides (b) The Director of Selective 
Service or any State Director . . . may at any time after the issuance of an Order to 
Report for Induction . . . postpone the induction of a registrant until such time as he 
may deem advisable, (c) The local board shall postpone the induction of a registrant 
in accordance with section 6 (i) (1) or section 6 (i) (2) of the Military Selective Service 
Act [these mandate postponements to end of term (or year, for seniors) for college and 
high school students], (e) A postponement authorized in paragraph (b) or (c) of this 
section in excess of 40 days or without limit may be terminated when the issuing 
authority so directs and upon not less than 30 days nor more than 40 days notice to 
the registrant. The registrant shall then report for induction at such time and place 
as may be fixed by the local board. 

Alert readers may have noted the inconsistency between subsections (c) and (e) of this 
porvision. Sections 6(i) (1) and 6fi) C2) of the Act require postponements to end of 
term : subsec. <'e) purports to authorize the local board to terminate such postponements 
"when [it] so directs." 

*° Discrepancies between press release summaries of recent amendments to the Regu- 
lations and the Regulations themselves have occurred more than once. The most blatant 
example occurred in connection with the major changes proposed November 3. 1971. 
These included a proposal which would hive barred many registrants from appealing to 
the appeal hoard after their local hoard personal appearance unless they had requested 
such an appeal before even meeting with the local board. Proposed R1624.5 (Nov. 3, 
10711. This ma.ior chance in appeal risrhts was nowhere mentioned in SSS Press Release 
No. 71-17 (Nov. 2. 1071), which otherwise srave a detailed summary of the major 
chancres proposed. The Director of Selective Service later acknowledged that he had 
personally rejected a proposal by the Operations Division to curtail appeals in the 
manner of proposed Rlf.24.5. It thus appears that the Public Information Offices press 
release more accurately conveyed the Director's intent than the formal Regulations them- 
selves ! The November proposal was eliminated in the proposals of Jan. 12. 1972. 

« A'l. Bull. No. 765.1, Part T (Jan. 1. 1072) lists the "official issuances" of Headquar- 
ters. These include five manuals, three bulletins. Letters to All State Directors, and six 
nthc r minor issuances. Local Board Memorandums are not included, but "all discontinued 
issuances will remain valid until rescinded or superseded." Ad. Bull. 765.1 is reproduced 
in Appendix F. 



98 

(B). LBM 99 had to be amended to create these subgroups and establish a 
270 day outer limit for induction from the EPSG. Then Letters to All State 
Directors 00-51 and 00-53, and a "personal" letter to the state directors, 
were issued. These established the fiction that all Group A members have been 
"available" since July 1, 1971 (irrespective of their actual status) so that 
their 270 days are up on March 2G, 1972. R1631.6 and LBM 99 provided no 
other escape-hatch, although the 11,000 remaining members of Subgroup A have 
now been in the prime liability group for 27 months, due to delays which for 
the most part were not their fault. 

LASD 00-51 itself has been revised and reissued twice since December 
1971, once because of complaints of fairness in handling 1-0 registrants during 
this period of no inductions, once to add a paragraph to cover a major class 
of cases simply omitted from the prior version. 42 More changes may be forth- 
coming as a result of litigation recently filed here in the District of Columbia. 

R1631.6 as originally drafted failed to include 1-0 registrants at all in its 
definitions of the various priorty groups. Piecemeal amendments have inserted 
"1-0" in most of the more than eight places required. But see the language set 
forth below in the textual comparison with LBM 99. The LBM refers to both 
induction and civilian work orders ; R1631.6 solely to induction orders. 

A final example of sloppy draftsmanship is the extraneous "or" in proposed 
R1625.2 noted above in the discussion of Mulloy. 42 * As indicated there, the 
phrase is almost unintelligible unless this word is ignored, yet the error was 
not caught. Ironically, it appears that a similarly located "or" in the very next 
sentence of proposed R1625.2 was detected and removed before the proposed 
text was sent to the Federa Register for publication. 43 

(c) Many of the draftsmanship problems discussed in the last two sections 
also involve conflicts between various classes of directives. For example, LBM 
99 conflicts with R1631.6 over the proper placement of men leaving EPS Group 
A. 44 Another serious conflict between R1631.6 and LBM is set forth beolw : 

LBM 99 

E. Transfer from First Priority Selection Group to Extended Priority Selection 
Group 

(1) Any registrant in the First Priority Selection Group on December 31 
. . . who was not issued an [induction order or ciinlian work order] with a 
scheduled reporting date within that calendar year, shall on January 1 of the 
following year, be assigned to the Extended Priority Selection Group. [Em- 
phasis supplied.] 

R1G31.6 

(d) (4) Members of the First Priority Selection Group on December 31 . . . 
who had not been issued Orders to Report for Induction during the calendar 
,year shall be assigned to the Extended Priority Selection Group . . . [Em- 
phasis supplied.] 

Since induction orders at year's end are issued in late November for 
January induction, LBM 99*s added language is of some importance. Note, 
also, that R1631.6 nowhere mentions alternate service orders. To this 
extent LBM 99's attempt to fill the gap is unauthorized, as is its subdivision 
of the Extended Priority Group into "A," "G," etc. 

There are also conflicts between the Registrants Processing Manual (RPM) 
and the Regulations. For example, proposed R1621. 10(a) (Jan. 12, 1972) 



42 Copies of these directives are included in Appendix G. Headquarters was not willing 
to take the position that "inability of the local hoard to act" (See text at note 31, supra) 
does not include situations where there are no inductions due either to lapse of induction 
authority (as occurred last summer) or to zero-draft-calls (as during the first quarter of 
this calendar year). 

* 2I > See note 9. supra. 

43 The typed version of this latter sentence contains an extra space in the place where 
this "or" was removed. Copy available on request. 

44 See text at note 37, supra. 



99 

gives registrants ten clays to return their Registration Questionnaires (Form 
100). This is an important right since some terms on Form 100 are both 
significant and obscure. RPM Ch. 613, however, clearly contemplates that 
Registration Questionnaires will be filled out in the presence of registrars. 
Local boards in at least two states (Illinois and Maryland) so interpret it, 
the former because of a state headquarters memorandum so directing. 

2. Directives Beyond the Authority of the Act and Regulations 

An extremely serious problem of authorization exists for a substantial 
number of LBM's and other directives issued by the Director between 1969 
and 1971. In testimony before the Administrative Practice and Procedures 
Subcommittee on February 28, 1972. Dr. Tarr acknowledged that prior to 
October 12, 1971. because of the asserted difficulty of applying to the Presi- 
dent for Executive Orders to amend the Regulations, 45 he sometimes issued 
LBM's and other directives which had the effect of amendments. LBM's 78, 
99, 107, 114, 116, and 121 are recent examples. 46 

But at this time the Director had authority only to issue "housekeeping" 
regulations. 47 In other words, these substantive LBM's are invalid because 
beyond the Director's rulemaking authority. 47 * 1 

D. Informing The Registrant of Duties and Rights 

The discussion has concentrated an official system directives, which are 
disseminated primarily to its employees. 48 One of Dr. Tarr's earliest and 
most welcome innovations was to develop materials for dissemination to 
registrants and others interested in their draft status (i.e., families and 
employers of registrants). 49 



45 But see text after note 26, supra. 

46 See Appendixes A (LBM 107), B (LBM 121), E (LBM 99) and H (LBM 78, 114, 
116) for texts. Also LBM 111, supra, note 4, and Letter to All State Directors 00-23 
(May 30, 1971), Appendix H. The significance of failure to publish these under the 
Federal Regitser Act and Freedom of Information Act is considered in Part III. 

47 Rl 604.1 (b) provides: 

The Director of Selective Service is hereby authorized and directed : 

* » * 

(b) To issue such public notices, orders, and instructions as shall be necessary for 
carrying out the functions of the Selective Service System. 

On October 12, 1971, the President delgated full authority to the Director to promul- 
gate rules and regulations under the Act. E. O. 11623. 

473 See Peters v. Hobby, 349 U.S. 731 (1955) (administrative agency exceeded adjudica- 
tory powers conferred by th President; its action was invalid to that extent). 

4S Until December 1971, copies of Headquarters directives were not even mailed to board 
members! See LASD "OAD" (August 25, 1970) ; LASD No. 790.1 (Jan. 19, 1972') ; per- 
sonal letter to state Directors (Oct. 22, 1971). Compensated personnel were (and still 
are) in large part relied upon to call attention to and review with members of the board 
[at local board meetings, which occur only once or twice a month] any new or [?] 
pertinent memoranda, directives or policy statements received since the last board meet- 
ings. Inspection Services Bulletin, Nov. 1971, at N-8. 

This system continues to be unworkable. Insp. Serv. Bull., Dec. 1971, at D-12, reporting 
on November inspections of 321 representatives local boards in 28 states, noted that 
one problem was "[n]ew directives not discussed." 

At board meetings, executive secretaries typically summarize both the facts of cases 
presented and what they take to be the applicable rules and guidelines. Such a system 
is not unlike a nurse describing a patient's symptoms and all relevant illnesses to an 
ignorant doctor who then is expected to make an accurate diagnosis. Reliance on such a 
haphazard system in this time of massive changes in standards and procedures betrays 
a serious lapse of administrative judgment. 

Even effective dissemination of directives would not suffice at this time. The Chief of 
the Public Information Office at Headquarters recently told me that both compensated 
and uncompensated personnel (i.e., executive secretaries and board members) are thor- 
oughly confused about the myriad recent changes in policy and procedure. So, to be 
honest, am I, and so are most draft counselors and lawyers. 

In this context, establishment of a training program for board members. Including a 
staff examination for knowledge, is indicated. I would be happy to cooperate in developing 
such a program. s 

+>,ri n K^ e0 K- T '^ m . e H w ead, ?Harters issuances (e.g., LBM's and the RPM) are available to 
the public by GPO subscription. The printing delays are so extreme, however, as to de- 
^h^Lw- ^^Ptto? 3 . of all usefulness. The standard lag between issuance and GPO 

bS P r^i™rih nS °l IjB <l IS 1S S :,V? m0Tlths - E -G- LBM 73 was amended June 14, 1971 
nut not received by subscribers until January 1972. 



100 

In 1970 the Public Information Office prepared and widely disseminated 
brochures on specific deferments and the lottery system and a Curriculum 
Guide for use in high schools. These were useful although far from com- 
plete. Work was later begun on a Manual for draft counselors ; I was a con- 
sultant for this latter effort. 

Unfortunately, the impetus of this program has flagged over the last six 
months, just when it should have picked up. One reason, of course, is that 
some regulatory changes are not yet firm. But many important matters have 
been fixed for some time. For example, no brochures have been issued B0 
about the broadened exemption for surviving sons introduced by the 1971 
amendments to the Act, although the regulation governing this has been 
final since December 1971. 51 Nor has complete information been communicated 
about the new 1-H classification which is significant for registrants from 
the moment of registration. 52 

Moreover, Headquarters has apparently now decided not to issue the Coun- 
selor's Manual but to convert it into a guide for Advisors to Registrants after 
deleting certain important parts. 

The documents issued to registrants with which I am most familiar are 
System Forms/' 3 Form 150 was discussed earlier. 64 Form 110, Notice of 
Classification, informs registrants of their board's decision on classification 
requests. This Form carries or will carry 53 notices of various rights (to 
personal appearance before local board, appeal and personal appearance 
before appeal board, to transfer the latter), obligations (to inform board 
of changes of address and status), and other matters (availability of Ad- 
visors to Registrants 56 ). Nowhere, however, does the notice warn registrants 
that if they fail to appeal they will never be able to secure judicial review 
of their board's decision. 57 This information should be added to the notice, 
but Headquarters has apparently decided not to do so. 58 

III. PUBLICATION OF DIRECTIVES IN THE FEDERAL REGISTER 

Mr. Chairman, when the Administrative Practice and Procedure Subcom- 
mittee held hearings in late 1969 on the administration of the Selective 
Service Laws, Thomas Alder, President of the Public Law Education Insti- 
tute, testified that the Selective Service System lacked procedures to solicit 
comment on its Regulations and directives before issuing them in final form. 
The thrust of that testimony was that the President or the Director might 
avoid administrative disruption and litigation over ambiguous regulations by 
establishing a notice and comment procedure, quite apart from the Adminis- 
trative Procedure Act, whose pre-publication provisions did not apply to 
the Selective Service System. 



B0 Press releases summarizing: these changes have been issued, as seen above. These rely, 
however, on the interest and comprehension of the press for ultimate dissemination to 
registrants. In fact, brochures themselves are not automatically sent to registrants ; this 
can and should be done. See Report of the National Advisory Commission on Selective 
Service 32 (1967) (Marshall Commission Report). 

E1 R1622.54 (Dec. 10, 1971). The same is true of the broadened exemption from regis- 
tration and service for various classes of aliens. R1622.42 (Dec. 10, 1971). 

52 Registrants not likely at a particular time to be inducted are placed in 1-H, which 
is a "holding" classification : 1-H registrants cannot be inducted, and their claims are 
not processed. See RPM 622.18. 

ks Forms are considered to be Regulations. R1606.51. The Director proposed revoking 
this section, however, on January 12, 1972. 

E4 See note 11, supra, and accompanying text. 

E! The first printed batch of Form 110's adopted for optical character reading (OCR) 
lacked all notices. Separate statements are supposed to be included with these when 
mailed. 

5a Some boards do not, however, have Advisors. 

G7 This is because of the judicial doctrine requiring "exhaustion" of administratvie 
remedies as a condition precedent to judicial rview. See text aftr note 27, supra. 

58 General Counsel Walter Morse, in correspondence last fall with Nathan S. Smith, 
Esquire, indicated that Mr. Smith's suggestions on this point were being considered. 
However, the notice accompanying Form 110's mailed in January and February 1972 do 
not refer to the bar on judicial review. This notice and the exchange of correspondence 
between Messrs. Morse and Smith are in Appendix I. 



101 

The subcommittee adopted the suggestion in its Report, and, in January 
1970, the Administrative Conference of the United States made a comparable 
recommendation, urging all agencies having statutory exemptions from the 
Administrative Pricedure Act wherever possible to adopt rule-making pro- 
cedures on the APA model. Several agencies, including the Veterans Admin- 
istration, have followed this recommendation, but the Selective Service Sys- 
tem, whose Director, General Counsel and Assistant Counsel have served 
successively on the Conference, declined to promulgate procedures which 
would bring it in line with general agency practice. In mid-1971, with no 
agency action forthcoming, the Senate unanimously adopted an amendment 
to the Military and Selective Service Act of 1971 which mandates a 30-day 
period for comment after a proposed regulation is first published in the 
Federal Register. As amended, this provision (§ 13(b)) now reads as follows: 

All functions performed under this title shall be excluded from the operation 
of the Administrative Procedure Act, except as to the requirements of § 3 
of such Act. Notwithstanding the foregoing sentence, no regulation issxied 
under this Act shall become effective until the expiration of 30 days following 
the date on which such regulation has been published in the Federal Register. 
After the publication of any regulation prior to the date on which such 
regulation becomes effective, any person shall be given an opportunity to sub- 
mit his views to the Director on such regulation, but no formal hearing 
shall be required on any such regulation. The requirement of this subsec- 
tion may be waived by the President in case of any regulation if he (1) 
determines that compliance with such requirements would materially impair 
the national defense, and (2) gives public notice to that effect at the time 
such regulation is issued. 

The uncertain and incomplete manner in which this statutory command 
has been implemented since it went into effect on September 2Sth, 1971, 
deserves the scrutiny of this subcommittee. 

Section 13(b) contains two ambiguities which have required early inter- 
pretation by the System. In the lesser matter, the System construes § 13(b) 
to mean that every time it modifies a proposed Regulation as the result of 
comments it receives, the revised version must be treated as a new Regu- 
lation and consequently must be circulated for a second ten-day review to 
certain federal agencies, followed by a re-publication for 30 days of public 
comment. The ten-day review was added by Executive Order 11623, which 
implements the amendment to § 13(b) and codifies intragovernmental review 
procedures. Under the interpretation given § 13(b) by the System, a pro- 
posed Regulation which undergoes any material change after comments have 
been received will not become elective until SO days or more from the time 
it was first circulated to the appropriate agencies under the Executive Order. 
This second pre-publication has been cited by the System as the reason 
for delay in the implementation of certain new statutory provisions. 

Standing alone, § 13(b) supports the interpretation given to it by Head- 
quarters; the use of the term "such regulation" suggests the same regulation. 
But § 13(b) can be interpreted in the light of the comparable provision of 
the Administrative Procedure Act, 5 U.S.C. § 552(d), which reads: "the re- 
quired publication or service of a substantive rule shall be made not less 
than 30 days before its egective date . . .". Here the term "a substantive 
rule" raises the same question that "such regulation" does : when is a revision 
so substantial that it constitutes in effect a new regulation or substantive 
rule? If the System would look for guidance on this issue to agency prac- 
tice under the rule-making section of APA, it would have a strong and 
precedented basis for relaxing, in many cases, its present rule on multiple 
pre-publication. The above-mentioned recommendation of the Administrative 
Conference to agencies having statutory exemption from APA, urging that 
they adopt APA-type procedures, adds further validity to the search for 
an APA precedent covering a problem arising under § 13fb). 

Delay in implementing the 1971 Act cannot, in any event, be fairly laid 
at the foot of the new pre-publication requirements. Wherever the rospon- 



102 

sibility for this delay rests, the bulk of it occurred between August 4th, 
when the Conference Report containing all provisions of the final Act 
passed the House, and October 12th, when the President issued Executive 
Order 11623 implementing § 13(b). Those who recall that the very sub- 
stantial 1967 regulations were issued in final form within a week of the 
President's signature on the Act will find it difficult to understand why, 
during the long Senate debate on the Conference Report, Headquarters 
could not have developed many of the proposed regulations implementing 
statutory provisions which were agreed to by both House and Senate con- 
ferees on July 30th. In fact, this witness personally suggested such a course 
to Headquarters nt the beginning of August 1971. 

It is thus difficult to understand how the ten-day agency review com- 
promise reached in E.O. 11623 substantially delayed issuance of the pro- 
posed Regulations if the Regulations could in fact have been completed and 
circulated before October 1st. 

Finally, during discussion of the proposed amendment to § 13(b) in the 
early summer, Headquarters representatives indicated that in the case of 
some recent Selective Service Regulations, agency review had taken up to 
seven months. Against that historical record, the ten-day review compromise 
embodied E.O. 11623 should greatly expedite, rather than retard, the prepa- 
ration of new Regulations. This reduction in the time required for agency 
review certainly overshadows the effect of the 40-day, or even 80-day, delay 
resulting from the new pre-publication requirement of § 13(b). 

Headquarters' expressed impatience with this requirement is, however, 
cause for some concern. In his February 28, 1972 testimony before the Ad- 
ministrative Practice and Procedure Subcommittee, the Director acknowl- 
edged that he found the pre-E.O. 11623 system of amending the regulations 
onerous because it required them to be issued by the President in the form 
of Executive Orders. To avoid this burden, he conceded, some amendments 
before October 1!)71 were framed as Local Board Memoranda (LBM's). 68 " 

May one not fear that Headquarters will be tempted to use similar means 
to avoid the publication requirement of § 13(b)? 

Experience over the last five months provides convincing evidence that 
such fears are indeed fully justified and that a broad interpretation of 
§ 13(b) is therefore indicated. 

The System takes the position that only those directives denominated 
"Selective Service Regulations" and codified in Part 1600 et seq. of 32 
C.F.R. must be prepublished. At the same time, it has inconsistently attempted 
to convert many sections of those same Regulations B9 to more informal 
directives. The examples of this are legion, particularly in the amendments 
proposed November 3-5, 1971. Some Regulations have simply been revoked, 
later to appear as sections of the RPM 60 or otherwise. The most distressing 
example of this is the proposed revocation of R1606.51, which for more 
than twenty years has made SSS Forms part of the Regulations. These 
are the main vehicle of direct communication between the System and regis- 
trants. There is no more sensitive group of directives on which public com- 
ment ought to be solicited and carefully weighed. As if to prove this very 
point, the Director has prepublished proposed Form 150, the Special Form 
for Conscientious Objectors, because the first draft, officially leaked to CO 
groups, had provoked such intense criticism. 

Other Regulations were stripped of specific standards and procedures, such 



ss a Spp text at note 26a. snpra, 

59 Provisions? of 32 CFR, Part 1600 et seq. are herein denoted "Regulations." Other 
directives may he referred to as regulations. As noted earlier, other directives include 
Letters to All State Directors (LASD's) and The Registrants Processing Manual (RPM) 
as well as four other manuals, three bulletins and six minor issuances. See note 41, supra. 

eo E.ff., R1655.4, 1655.6, 1655 10, 1655.11, and 1655.20 were revoked either on November 
3 or January 12. They governed various aspects of processing of overseas registrants. 
These matters are now covered exclusively by RPM Ch. 655, which also introduces addi- 
tional major processing changes. R1621.4. 1621.5, 1621.6, 1621.7, 1621.8. dealing with 
preparation for classification, werf similarly revoked, presumably to be repalced by RPM 
Ch. 621. to be called "Prparation For Classification." RPM Index. 



103 

language being replaced by phrases like "according to the rules prescribed 
by the Director" or "under such rules and regulations as the Director 
may prescribe," these again to appear in the RPM or elsewhere. 61 

Where this occurs, the standards and procedures appearing in the lower- 
level directive may or may not vary from those previously found in the 
Regulation. More important is the fact that henceforth, under Headquarter's 
interpretation, such standards can be amended without need to comply with 
Section 13(b). In short, Headquarters has ignored its own announced inter- 
pretation of this provision in order later to be able to profit from that 
interpretation. 

It should not be surprising, then, that Headquarters has also promulgated 
in the RPM directives of such significance that they must be considered 
"regulations" under any workable definition of § 13(b). The new I-H sys- 
tem, the most significant administrative reform in years, is the prime ex- 
ample. It was promulgative by means of the device last discussed, which 
meant that public comment was thoroughly frustrated. The new I-H (hold- 
ing) classification was established November 3, 1971, by new R1622.18, the 
entire text of which read 

In Class I-H shall be placed any registrant who is not currently subject 
to processing according to these regulations 62 and the rules prescribed by 
the Director of Selective Service. 

No "rules" were issued in November or December, when the above Regula- 
tion was adopted. Many subscribers called our offices during the 30-day 
comment period to inquire where the regulations on I-H were. There were 
none. 

Then at the end of January I received section 622.18 of the RPM — 
never published in the Federal Register— which defines seven different cate- 
gories of registrants eligible for Class I-H and five groups who are ineli- 
gible. By this time we were even getting calls from registrants, for all new 
registrants are eligible, are in fact required to be classified in I-H. 

Some RPM provisions, such as RPM ch. 613, Procedures for Registration 
and creation of a Registrant's Selective Service File, have introduced changes 
in procedures which bring them into conflict with the Regulations. 63 

This problem is not limited to RPM sections, although it certainly is 
severe enough in the few chapters issued thus far to justify firm guidance 
from this subcommittee. Myriad LASD's have been issued since September 
28, 1971 — some twenty by rough count between October 1 and the end of 
January, if all miscellaneous "telephone messages," telegrams and identical 
"personal" letters from the Director to State Directors are included. Many of 
these are concededly not of regulatory significance. But some undeniably 
are regulatory, particularly those discussed between notes 41 and 42 above 
and printed in Appendix G. 

It is imperative that a broader, more functional interpretation of § 13(b) 
be adopted by the System. I would propose the following dual test : First, 
amendments to any provision which was part of the Regulations on Septem- 
ber 28. 1971 must be published for comment. Second, any Headquarters 
directive must be p republished for comment which (1) is mandatory in tone 
or probable impact on board or State Director action and (2) so substan- 
tially affects the classification and processing of registrants that (a) board 



61 E.<r., R16"1.2. 1631.5 dealing with the new system of allocating induction calls on 
a uniform oasis (the National Call). These rules appear as RPM Ch 631. Also, R1604.2 
and 1604.52, which previously established the minimum number of members for local and 
appeal hoards. Now this matter is covered by LASD ! Se LASD's GC-1 and GC-2 (Nov. 
10. 1071). 

62 The other Regulations gave only minimal additional details. R1625.2(b) provided 
the local board may also reopen and consider anew the classification (1) of a registrant 
in Class I-H who becomes subject to processing according to these regulations and the 
rules prescribed by the Director, and (21 of a registrant in any classification for the 
purpose of classifying him I-H according to these regulations and the rules prescribed 
by the Director. 

R1623 adds "I-H" to the list of classes. Xo other Regulations refer to I-H at all. 

63 Proposed R1621.9. See text between notes 44 and 45, supra. 



104 

ilure to observe it or (I)) judicial invalidation of it would result in judicial 
invalidation (it* induction orders. 

This standard is both workable, fair, and conducive to administrative and 
judicial efficiency. 

Workability 

The detailed evaluation in Part TI of this statement gives some idea of 
the range of directives likely to play a significant role in judicial review. 
One line of cases is particularly relevant: those holding that the system 
must follow "rules" contained in directives other than Regulations. 84 

Judicial and Administrative Efficiency 

This broad test will both promote efficient administration and minimize 
waste of judicial resources. It will first of all remove the incentive to 
evade Section 13(b), which will minimize litigation — some of which is already 
threatened — over alleged violations of the prepublication rule itself; it will 
also minimize the number of processing actions likely to be voided and thus 
to have to be duplicated on this basis, or because boards fail to follow 
directives due to their informality. 

Resort to § 13(b) will result in more mature policy decisions and more 
carefully drafted directives, because of both internal and external review 
and comment. This in turn will minimize other litigation, particularly chal- 
lenges to induction orders, which also require wasteful reprocessing when 
successful. 

Fairness 

Finally, for much the same reason, the suggested test will promote fair- 
ness to registrants. They will have adequate notice of and an opportunity 
to participate in the rules binding them. The rules will thus be as equitable 
and clear in meaning as possible. Thus fewer will be inducted through 
ignorance and the threat of prosecution, and fewer will be forced to run 
the gauntlet of prosecution to secure judicial review. 

Senator Kennedy. That is an excellent statement and very com- 
plete. We will <jo to Mr. Shattnck. We are going to run into a time 
problem here. We have another panel and another witness. We are 
going to have more votes as we move on through the afternoon. I 
want to see if you can begin to summarize these and just catch the 
highpoints. We will put all of the material in the report. 

STATEMENT OF JACK SHATTTTCK, AMERICAN FRIEUDS 

SERVICE COMMITTEE 

Mr. Shatttjck. First, I would like to add to the record the regula- 
tion to which Mr. Karpatkin was referring to earlier and Dr. Tarr 
alluded in terms of the opportunity to extend the appeal time. The 
30-day appeal regulation is still in effect and until the 15-day regu- 
lation goes into effect, which has been hanging in mid-air since Jan- 
uary 12th. It reads as follows, and this is from 32-C.F.R, section 
1626.2 (d) : 

At any time prior to the date the local board mails to the registrant an 
Order to Report for Induction (SRS Form 252), the local board may permit 



84 g ee text at note G and note 26, supra, A very recent and Important example is 
Naskiewicz v. Local Bd. No. 61, 5 SSLR 3168 (2d Cir. Feb. 18, 1972), which held that 
fail 'ire to follow LBM 121 (Appendix B) invalidated an induction order. Preinduetion 
review was allowed (see note 13. supra). See also United States v. Bagley, 3 SSLR 3585, 
4305F.2d 55 (5th Cir. 1970) (LBM 82) : United States v. Davis, 2SSLR, 3170, 413 F.2d 
148 (4th Cir. 1969) (same) ; Talcott v. Reed, 217 F.2d 360 (9th Cir. 1954) (State Direc- 
tor Advice) ; United States v. Stout, 2SSLR 3280, 415 F. 2d 1190 (4th Cir. 1969) (LBM 
41 interview). 



105 

any person described in paragraph (c) of this section to appeal even though 
the period for taking an appeal has elapsed if it is satisfied that the failure 
of such person to appeal within such period was due to a lack of under- 
standing the right to appeal or to some cause beyond the control of such 
person. 

This is still in effect. Certainly that seems to be rather flexible. 

I would like to summarize for you if I could, some of the points 
in my prepared statement. Let me indicate first of all, that the 
American Friends Service Committee is not an organization devoted 
fulltime to problems of the draft. It is a Service Committee founded 
in 1917 originally to work with problems of members of the religious 
society of friends in determining how to meet their conscientious re- 
sponsibility during the First World War and has continued over the 
years to try to meet young men's problems with the military in terms 
of matters of conscience. Therefore, it maintains many of the offices 
with draft programs — including one in New York which I am the 
coordinator — and uses many counselors. Counseling is done by about 
two dozen volunteers. This is typical of many offices and draft coun- 
seling centers throughout the country. Persons manage to turn to us 
because they feel apparently because of the friends' peace efforts and 
because of I assume the information we provided over the years that 
they could find a reliable source of information there. I am also speak- 
ing as my prepared statement indicates, out of my own experience 
with Selective Service System, and being a draft counselor for the 
past 7 years. The points I indicated in my prepared statement explain 
what I understood to be Selective Service responsiveness to additions 
and reforms approved bv Congress and adopted into law September 
28th. 

I have various point listed that indicate that in some cases for 
registrants, the opportunity for procedural changes which were al- 
lowed by the law were put into effect by Dr. Tarr in the system in a 
manner substantially earlier than the regulations provided ; and those 
among them were various registrants' rights which would benefit 
them; they have been delayed and slowed down. 

Just to point out the various points that are covered in my presen- 
tation; under limiting registrants sooner than properly authorized, 
I note elimination of 2-S, student deferment. 

Dr. Tarr sent a letter to all college registrars suggesting that 
the Selective Service Form 109 not be used on behalf of incoming 
freshmen, citing the potential abolition of such student defer- 
ments and extended liability afforded students as a result of such 
deferments. On September 22, 1971, Dr. Tarr issued Local Board 
Memorandum No. 122, directing draft boards not to grant such 
deferments, expecting them to be short-lived. These steps were prior 
to approval of Public Law 92-129 on September 28, 1971, giving 
the President the option of eliminating those 2-S deferments. No 
authority was cited by Dr. Tarr for his policy in LBM 122, which 
violated selective service law then in effect. When the regulations 
finally went into effect in December, between September and De- 
cember, registrants who did not receive these deferments were pre- 
judiced and in fact some men may have been inducted as a result 



108 

of not getting their deferment and right to appeal and other 
benefits conferred by Congress. 

(The following comment on Mr. Shattuck's statement was subse- 
quently submitted by the Selective Service System:) 

During the brief period between the enactment of the Military Selective Service 
Act by the Congress on September 21, 1971, and its signature into law by the 
President on September 28. 1971, the Selective Service System considered that the 
Congress had expressed its intent and accordingly, it was decided that the ad- 
ministration of the System should conform to the legislative intent. Section 17 
of the amending legislation repealed Section 6(h) (1) which was the statutory 
basis for the2-S college student deferment. However, the amendment represented 
by Section 22(b) of the Act provided that those who met the academic require- 
ments for a student deferment under the previous legisl.it ion and who were 
satisfactorily pursuing a full-time course during the 1970-71 regular academic 
year should continue to be deferred. Thus, those entering college for the first 
time in the 1971 summer session or later would not be entitled to the previous 
statutory student deferment. 

Therefore, Local Board Memorandum No. 122 merely instructed the boards 
to delay classification of such students into Class 2-S since the anticipated new 
legislation, by omission, would retroactively remove the basis for such classifica- 
tion. In other words, to continue to classify into 2-S one who would shortly be 
ineligible for such class was a pointless and useless processing step since such an 
individual would have to be reclassified as soon as the new Act became effective. 
The delay in taking a classification action which, in a very short period of time, 
would no longer have a statutory basis, served to eliminate confusion and un- 
certainty for the registrants affected. It is believed that the processing directive, 
Local Board Memorandum Xo. 122, did not exceed the Director's discretionary 
authority. 

Another one was the elimination of the 1-Y medical disqualifi- 
cation deferment. By November 24th, State headquarters around 
the country were already distributing a national headquarters di- 
rective about what changes would go into effect December 10th, 
they haven't even waited for the comment period to go through 
before they knew exactly what the changes would be and exactly 
when they would go into effect. 

The situation with the medical deferment is very important be- 
cause this has a tremendous effect upon young men in terms of 
the number of people alone. This is probably the largest classifica- 
tion of persons since the student deferment is fading out. This 
would be persons who are covered by medical and physical and 
mental disqualifications under this classification. 

The 1-Y classification, as previously existed, is being phased out 
and you can become either 1-A or 4— F. Now, as to why you should 
be 1-A, that is somewhat of a question. Previously these men were 
examined and found to be not acceptable at the present time and 
acceptable only because of the standards that would exist at times 
of war and national emergency. 

They are called now 4— F but the same standards still apply but 
as far as the information in their file, nothing has changed. No 
new material is presented. 

Those men being reclassified into 1-A are being classified that 
way as a result of the statement from the Armed Forces exam- 
ination and entrance station — AFEES — to the effect that reexamina- 
tion may be justified in a period of 6 months or a year or some- 
thing of that nature. This proposal in a statement from the Armed 



107 

Forces examination and entrance station is being used to deter- 
mine whether these men are 1-A or 4-F, despite the lack of informa- 
tion in their file supporting that conclusion, incluidng any previous 
medical histories. 

This certainly is not justified anywhere in the law and in fact 
the situation came up over a year ago in September of 1970 when 
the temporary successor to General Hershey issued two letters to 
all State directors which called attention to the problem, and he 
noted specifically that registrants who have been found unaccept- 
able by the AFEES with reexamination believed justified on DD 
form 62 (notice of acceptability) shall be considered for reclassi- 
fication in class 1-Y immediately after receipt of DD form 62. 
The recommended time interval before the reexamination specified 
by AFEES shall have no influence upon consideration of such 
registrants for classification in class I-Y." 

In other words, one should put this man in a status on the 
basis of a recommendation for an examination when an examina- 
tion might be justified. This statement, reissued on October 22, 
1970, was deleted only because this entire LASD was itself re- 
scinded by another issued local board memorandum, LBM 121, 
which was not prepublished, generally spells out the criteria for 
the medical appeal procedure in determining reclassification. 

The medical situations are those that are most confused — and I 
would call the Senators' attention to this specifically because the 
Selective Service System does not treat medical claims as making a 
prima facie assertion of a disqualification or qualification for a 
given classification of other than 1-A. Previously persons were 
entitled to a medical interview with a medical adviser to the local 
board. 

If he presented a prima facie case by doctor's letters, etc., to a 
local board, he would be entitled to a mandatory medical inter- 
view. That was rescinded when, in a court case, the court said it 
was in fact mandatory. Benitz-Manrique v. Micheli, 305 F. supp. 
334, (D.P.R, 1969) But now it is only advisory. If a man pre- 
sents a prima facie medical claim, the local board does not pass 
upon his classification. Instead it passes the information directly 
on to the examining station and so it fails to take any action on 
it unless it gets some recommendation there and the recommenda- 
tion may be for some examination sometime in the future. 

This totally was contrary to what had been required by a ruling 
of the 1st Circuit Court and the 9th Circuit Court, the latter of 
which was made only in the past weeks. Selective Service still has 
not accepted the position that this is a requirement and is not 
complying with this. 

(The following comment on Mr. Shattuck's statement was subse- 
quently submitted by the Selective Service System:) 

The real issue here seems to be the legality and fairness of the new selective 
service policy of retaining in Class 1-A those registrants who have been only 
temporarily disqualified for service. 

First, the two Letters to State Directors which were cited in the testimony as 
being the governing authority for placing temporarily disqualified registrants in 



108 

Class l-V were rescinded on June 25, 1971. Hence, it cannot be charged that 

led ive Servb e's aew policy contradicts these two letters. 

Second, even it there were .such a contradiction, the new Selective Service 
Regulations, not the two Letters to State Directors, would take precedence and 
aid be the authority in the matte:-. 

Third, the new policy is fairer to the registrants in question, in that it allows 
them to know exactly where they stand regarding Selective Service. The old 
practice of classifying registrants 1-Y often created hardships for registrants 
who, believing they were permanently rejected for service, began raisin-- fami- 
lies, buying homes, and entering careers only to learn a few months or a year 
later that they were no longer disqualified for service. 

The new policy therefor." is noc superseded by any other issuances, and is in 
the long run far more fair to the registrant. 

Mr. Chairman, my other points in this prepared statement deal 
with the elimination of the Government appeal agent and specifi- 
cally I am referring here to various publications in the Federal 
Register of proposed regulations and other issuances by Selective 
Service in a letter to all State directors which go ahead and put this 
into effect speedier than was provided. I have some flagrant ex- 
amples here which I perhaps can supplement into the record at 
another time. 

The next point is the reduction of the appeal time from 30 to 15 
days, which has been covered previously. The Selective Service 
stated in a letter to all State directors that a new "Notice of 
Right to Personal Appearance and Appeal" was being printed to 
conform to the newly proposed regulations. 

Senator Kennedy. We are running out of time. I just want to 
be fair to some of the witnesses, so I am really to go try and see 
if we can't tighten this up a bit. 

Mr. Shattttck. All right, Mr. Chairman. I would then provide 
for the subcommittee additional information documenting these 
points both as in my statement and those that have been further 
called to light here. 

I might also call to the attention of the committee my own per- 
sonal experience here with the Selective Sen-ice System in terms 
of information. The Office of Pubilc Information of the Selective 
Service in Washington has been most helpful and I would like 
to call the attention of the subcommittee to the persons coming in 
since Dr. Tarr: Ken Coffey, Tim Kelly, William Holmberg, Ed 
Wells, Pat McGarvey, and their associates in terms of what infor- 
mation they can provide. 

I think it is important to recognize the efforts they have done to 
provide information but in any event there seems to be some kind 
of a question within the system as to what information is avail- 
able through its own public information office. 

As one example I have appended to my statement a subject index 
to the major or national directives and which of these directives 
have been in effect since January 1st. There appears to be no Selec- 
tive Service index to their own operational procedures even though 
they have issued an administrative bulletin outlining the methods 
by which an index shall be issued and where it would be fit in. 
So, I have appended an index for the subcommittee for the pur- 
poses of general information. 



109 

As I said, I will try to present additional information. 
Senator Kennedy. Very good. Thank you. That was a very fine 
statement. 

(The amended statement of Jack Shattuck follows:) 

Amended Statement of Jack Shattuck, Draft Counselor Coordinator for the 

American Friends Service Committee 

I am Jack Engel Shattuck, and I speak as the coordinator of volunteer draft 
counselors for the American Friends Service Committee in New York City, 
who last year under my direct supervision counseled 3600 young men on their 
relationships with Selective Service. I have been a draft counselor myself with 
the Jewish Peace Fellowship for the past seven years, and during 1971 served 
as Co-Director of the Military and Draft Law Panel of the American Civil 
Liberties Union of New Jersey. My experiences stem from those and related 
affiliations and activities. 

The following statement presents my understanding as regards Selective 
Service response to Congressional intent and explicit law adopted in PL 92- 
129, 85 Stat. 34S, approved September 28, 1971. The first section relates the 
accelerated denial of certain benefits previously in effect, more swiftly removed 
than allowable by law. A second part of this presentation demonstrates the 
failure to promptly and properly accord new procedural rights favorable to the 
registrant. In sum, it is intended to show the complete variance of recent 
Selective Service policies from the expressed ideas and the mandates of Con- 
gress. 

i. limiting registrants' rights sooner than properly authorized : making 

MEANINGLESS THE 30-DAY COMMENT PERIOD 

A. Elimination of the 2-S Student Deferment 

On September 3, 1971, Director Curtis W. Tarr sent a letter to all college 
registrars suggesting that Selective Service Forms 109 (indicating student 
status) not be issued on behalf of incoming freshmen, citing the potential 
abolition of such student deferments and extended liability afforded students as 
a result of such deferments. On September 22, 1971, Dr. Tarr issued Local 
Board Memorandum No. 122, directing draft boards not to grant such defer- 
ments, expecting them to be short-lived. These steps were prior to approval 
of PL 92-129 on September 28, 1971, giving the President the option of elim- 
inating those 2-S deferments. No authority was cited by Dr. Tarr for his 
policy in LBM 122, which violated Selective Service law then in effect. 

The President, by Executive Order No. 11623 of October 12, 1971, gave the 
Director authorization to issue certain Selective Service regulatiins in his 
name. Regulations abolishing freshman 2-S deferments were published in the 
Federal Register November 3. 1971, and were not announced as effective until 
December 10, 1971. 

This delay between September and December is not insignificant when put 
in context of a 20-year-old who, if granted the 2-S until December 10. 1971, 
would not only have been thereby unavailable for November and December 
inductions (the only calls between June, 1971, and April. 1972, at the earliest) — 
but who also would have then received automatic rights to personal appear- 
ance and appeal, subject to the new procedural rights of witnesses, quorums, 
statement of reasons for denial of claims raised and appellate appearance 
opportunity. The student denied the 2-S and continuing his previous status of 
1-A would have no such rights, something not pointed out by Dr. Tarr in his 
letter to all college registrars; indeed, he might well have been inducted 
by now. 

B. Elimination of the 1-Y Medical Disqualification 

On November 3. 1971. the Federal Register carried the proposed elimination 
of Classification 1-Y. By November 24, 1971, Selective Service had already 

80-620 — 72 8 



110 

issued a Telegram to all State Directors (from Dr. Tarr) outlining what 
changes would result on December 10, 1971, for those currently holding 1-Y, 
although at least ten days still existed for comments, let alone analysis of those 
comments, on the proposed change. This would seem to suggest that not only 
had Selective Service no intention of considering any comments, but that they 
had the exact date already set as to implementation of the change. On December 

9, 1971, the Federal Register announced the change effective as of December 

10, 1971. 

Elimination of the 1-Y was discussed in Question and Answer form in Selec- 
tive Service Neics published by the Office of Public Information in January- 
February, 1972. The holding of Class 1-Y was there termed merely a "pro- 
cedural delay" and resulting in confusion to the registrant; therefore the 
classification was found in need of abolition. 

However, the same standards for medical disqualification still apply, and 
Selective Service ignores Supreme Court requirements that men with prima 
facie disqualifications have the right to obtain reopening of classifications, 
Mulloy v. United States, 398 U.S. 410 (1970), explicity applied to medical claims 
by United States v. Ford, 431 F. 2dl310 (1 Cir. 1970) and United States v. Miller, 
No. 71-2040 (9 Cir. Feb. 11, 1972). The accompanying procedural rights which 
Dr. Tarr once again neglected to elaborate upon are the "procedural delays" 
referred to in Selective Service News. 

C. Elimination of the Government Appeal Agent (G.A.A.) 

On November 3, 1971, the Federal Register carried the proposed eilmination 
of the Government Appeal Agent. On November 15, 1971, still within the first 
half of the comment period, Selective Service issued Letter to All State Direc- 
tors (00-45), also using the December 10, 1971, cut-off date for utilization of 
the G.A.A. The conclusions cannot but appear the same as in B, above. 

Further, Selective Service state headquarters acted so promptly on the sug- 
gestion in LASD (00—45), that some G.A.A.s concluded their work before the 
December 10 date — even when registrants still were awaiting their service. 

Although the G.A.A.s were abolished in part because of an apparent conflict 
of interest (recognized long before by the California Bar Association, A.B.A., 
New York State Bar Association and Selective Service's own National Youth 
Advisory Committee), Selective Service now placed such men onto the local 
boards of the registrants they had advised. Some local boards are virtually 
all composed of former G.A.A.s. 

An extreme example of the problems here are reflected in the following 
actual case : 

Joseph D. from New Jersey was reclassified after graduating college and 
asked to see the Government Appeal Agent to ascertain his rights. Ignored 
for 8% months despite repeated requests, he was ordered to and passed a 
physical examination, continuing to be held in a status available for induction, 
which he wished to contest. 

Finally learning from other sources his rights to claim certain exemptions, 
he was berated by the board for seeing a draft counselor and denied personal 
appearance rights. The Government Appeal Agent eventually intervened, but 
the local board refused to explain their actions in denying his claim. The 
Operations Chief at State Headquarters acknowledged that under the relevant 
Ct. of Appeals decision, Scott v. Commanding Officer, 431 F.2d 1132 (3 Cir. 
1971), which the registrant had inserted in his file, his asserted right to reasons 
from the board was "the law of the circuit, but not the law of Selective 
Service" and ignored the "law of the circuit" until National Headquarters inter- 
vened. Refusal of induction had been averted only due to the G.A.A. interven- 
tion once more. 

The Local Board, No. 14 for New Jersey, then gave its reasons for rejecting 
his claim — lateness in filing (resulting from waiting for the G.A.A. meeting 
which was promised, but ignored)— and refused once again to grant appeal 
rights from its findings. 

The G.A.A. was provided with legal arguments against the board's action 



Ill 

and ordered the file set aside until he completed reviewing it. After two 
months, the G.A.A. was contacted on November 26, 1971, for the results, but 
the Agent had resigned and pursuant to NASD (00-45), had now joined the 
draft board as a member. While all the registrants at Local Board 14 were 
left without a Government Appeal Agent for several weeks, the local board 
now contained 5 ex-G.A.A.s among its 6 members. It was not explained whether 
or not those former Agents stepped aside to avoid conflicts of interests when 
registrants they'd advised appeared before the board. The newly appointed 
G.A.A. is and was a member of the law firm serving as general counsel to 
another board member's business firm. 

The registrant finally obtained a reopening thx-ough the help of a draft 
counselor — this subcommittee's present witness. 

D. Reduction of the Appeal Time from 80 to 15 Days 

On January 12, 1972, the Federal Register carried the proposed reduction of 
appeal time from thirty to fifteen days. Within two days thereafter, Selective 
Service stated in Letter to All State Directors (00-54) of January 14, 1972, 
that a new "Notice of Right to Personal Appearance and Appeal" was being 
printed to conform to the newly proposed regulations. Rights outlined in 
previous notifications would be suspended "upon receipt" of the new notice 
which was to be distributed in "the most expeditious manner." Further, a 
sample letter to registrants found at page 622.18-5 of the new Registrants' 
Processing Manual, issued January 14, 1972, also accepts the proposed 15-day 
appeal period as fact. This clearly indicates any thoughts of changing the 
intention of Selective Service would be useless. 

In fact, what has happened is that those new notices have been delayed and 
registrants are being reclassified without any notice being sent them as to their 
obligation to reply within 60 or 30 or 15 days and thus they are in danger 
of losing any appeal period, whatsoever. 

II. LIMITATIONS ON KIGHTS FAVORABLE TO REGISTRANTS AND GRANTED BY CONGRESS 

A. Right to Appear Before Appeal Board and Obtain Statement of Reasons for 
Adversely Decided Claims 

On September 28, 1971, the President signed into law PL 92-129, including 
Sections 22(b) (1) and (b) (4) of the Military Selective Service Act, granting 
the registrants' right to personal appearance and statement of reasons for 
adverse decisions at either local or appeal board level. These rights were pur- 
suant to such rules and regulations "as the President may prescribe," such 
regulations having to be published in the Federal Register for a 30-day comment 
period, according to Section 13(b) of the Military Selective Service Act. 

The President issued no rules and regulations on the subject, and none 
were pre-published in the Federal Register. 

On November 2, 1971, Dr. Tarr issued a telegram to all state directors order- 
ing classification to resume under the laiv of 1967 for those cases filed for appeal 
whose time to request an appeal expired prior to September 28, 1971. However, 
where appellate requests could be made on or after September 28th (within 
30- or in some cases, with 60- day periods prescribed by the Regulations), no 
appeal classifications were to be made, said the Director. No appeal classifica- 
tions in fact were occurring at the time since the Director had ordered them 
suspended in a personal letter to all state directors of October 1, 1971. 

Further, registrants still awaiting appeal actions were not advised of their 
new rights to appear at appeal boards or to obtain statements of reasons when 
claims were rejected by local boards. This could have been done during the 
previous 32 days in which the Director had suspended appeal classifications, and 
in many cases also could have been undertaken in the time it took (subsequent 
to November 2, 1971) for appeal boards to get to all the cases awaiting their 
attention. 

In at least one state, as late as January 12, 1972, the Legal Counsel to a 
State Director refused to concede those rights to a registrant whose case was 



112 

not passed upon until over two months after Congress granted such rights. 
The registrant had requested the right to an appellate appearance on October 
1st, and upon denial of his claim, sought reasons (in early December). The 
•.->! Counsel stated that no regulations were in effect requiring a statement 
of reasons (ignoring the Act of Congress), and the registrant was therefore not 
entitled to them. The Selective Service officer declined to comment on the failure 
to allow an appearance although he had forwarded that request to the local 
board on October 8, 1971, "in order that your rights may be protected." 

In a telephone conversation with me, the Legal Counsel admitted that the 
reason he was ignoring PL 92-129 was the fact that he felt bound by the 
November 2nd Telegram of Dr. Tarr. 

When the Military Selective Service Act was changed in 1967 to omit a then 
procedural right of appeal, the information about Conscientious Objector 
claimants obtained from a Justice Department hearing, Selective Service took 
a different viewpoint on the speedy implementation of changes in the statute. 
The matter was raised in United States v. Haughton, 413 F.2d 736 (9 Cir. 1969) 
and United States v. Mizrahi, 417 F.2d 246 (9 Cir. 1969). Although one de- 
fendant was favorably, and the other unfavorably, affected by the change, two 
different panels of Judges of the United States Court of Appeals agreed on 
the same principle. 

In Haughton, it was found that statutes affecting procedural changes, which 
do not otherwise alter substantive rights, generally are considered immediately 
applicable to pending cases. The Justice Department, the Court noted, then held 
that cases awaiting determination by the appeal board, already sent to the 
appeal board, should be covered by the new act. This was even applied retro- 
actively to cases sent before the enactment of the new law, but not yet 
processed. Selective Service then concurred in that view. 

Mizrahi held that cases (1) sent to the appeal board after a change is 
effected by Congress and (2) sent to the appeal board before the change but 
not yet acted upon should in both circumstances be covered by the new 
procedures. 

Now that new procedures on appeal benefit the registrant, it appears as if 
Selective Service wants to ignore its own past history, as well as the case 
law enshrining it. 

B. Opportunity to Present Post-Induction-Order Conscientious Objector Claims 
to Local Boards 

Prior to April, 1971, lical boards followed two contrary directions regarding 
the hearing claims for conscientious objection made after receipt of induction 
orders. In those judicial circuits adhering to the rule in United States v. Gearey, 
368 F.2d 144 (2 Cir. 1966), 379 F.2d 915 (after remand) (2 Cir.), cert, denied, 
389 U.S. 959 (1967), CO. hearings were required But for others subject to 
courts following United States v. Ehlert, 422 F.2d 332 (9 Cir. 1970). CO. claims 
were held to be a change in circumstances over which the registrant had 
control, thus not requiring post-induction-order consideration, in accord with 
Regulation 1625.2. The Supreme Court, while declining to take sides "in the 
somewhat theological debates" over the extent of control of one's conscience, 
chose to accept for administrative reasons the result in Ehlert and declined to 
order boards to hold such hearings while other forums were available. Ehlert v. 
United States, 402 U.S. 99 (1971). 

Without explaining the Court's rationale, National Headquarters issued two 
directives within ten days of the Ehlert ruling; Local Board Memorandum 
No. Ill, April 23, 1971, informing local boards that they "may not" consider 
such CO. claims, and Memorandum to All State Directors (GC-2). from the 
Office of the General Counsel, April 30, 1971, advising state headquarters that 
those claims "cannot be considered" but "must be" submitted to the Armed 
Forces for evaluation. 

Thus the prevailing interpretation of Regulation 1625.2, experience of many 
local boards, and instructions from National Headquarters were against any 
consideration of post-induction-order conscientious objector hearings when PL 
92-129 came into being. Congress declined to overturn that situation by specific 



113 

law, but the Committee on Conference, report at page 22, held the understanding 
"that in unusual cases, local boards would have the discretionary authority of 
extending to such registrants a hearing on their late claim if the circumstances 
so warranted." 

Proposed Selective Service regulations of November, 1971, sought to rewrite 
provisions for issuing Special Form 150 for Conscientious Objectors so as to 
eliminate giving of the Form after induction orders. That was withdrawn 
after protest, but the current regulations do no more than repeat the previous 
standard for post-induction-order reopenings of classifications, only available 
when due to circumstances beyond control of the registrant. 

As LBM 111 and the Memorandum to All State Directors (GC-2) remain 
in effect, unamended as are the regulations on point, given the failure to inform 
local boards of the expressed Congressional intent, the registrant continues to 
be denied the will of Congress as if it had never been stated. 

Finally, it should be added that State Headquarters continue to issue their 
own memoranda, perpetuating this problem. Following is one such memo- 
randum : 

New York State Director, 
Operation* Memorandum No. 5, 
Issued: Jan. S, Wit. 

Subject : Post Induction Claims. 

Claims submitted by registrants after the mailing of the Order to Report for 
Induction (SSS Form 252), will continue to be processed under the porvisions 
of section 1625.2(b) of the regulations. Claims for classification in Class 1-0 
or 1-A-O received by the local board after the mailing of the Order to Report 
for Induction (SSS Form 252) may not be considered. Written information 
relevant to such claims shall be placed in the registrant's Cover Sheet (SSS 
Form 101). 

Registrants who have submitted claims for Conscientious Objector status 
subsequent to the issuance of an induction order shall be advised by letter 
that the recent decision of the United States Supreme Court in the Ehlert case 
prohibits such review by the local board. Postponements of induction and dis- 
cretionary interviews scheduled to review cases of this type should be can- 
celed. 

The following sample may be used for these purposes: 

For a registrant iclio has not been postponed for his claim. 

"In view of the recent Supreme Court decision in the Ehlert case, your post 
induction claim for conscientious objector status cannot be considered by the 
local board. Your claim may be presented to the Armed Forces subsequent to 
induction." 

"Your scheduled induction remains in effect and you should report on the 
day indicated therein." 

For a registrant who has been postponed. 

"In view of the recent Supreme Court decision in the Ehlert case, your 
post induction claim for conscientious objection status cannot be considered 
by the Local Board. Your claim may be presented to the Armed Forces sub- 
sequent to induction." 

"Your postponement of induction or discretionary interview, (whichever is 
applicable), is hereby canceled. Enclosed is a letter giving you a new date 
to report for induction." 

For the State Director 
Byron H. Meader, LTC, Arty, 

Operations Division, Manager. 

C. Congressional Mandate That Alternate Service Be Coordinated by National 
Headquarters Under the Direetor 

On September 28. 1971. PL 92-129 was signed into law, amending Section 
61 j) of the Military Selective Service Act, to provide that "The Director shall 



114 

be responsible for finding civilian work for persons exempted from training and 
service . . . and for the placement of such persons in appropriate civilian work 
contributing to the maintenance of the national health, safety, or interest." 

Yet on November 5, 1971, proposed Regulation 1660.1(b) was publisned in 
the Federal Register and, despite protests, put into effect December 10, 1971. 
It reads : 

"The State director of the State in which a registrant is registered will have 
primary responsibility for the initial placement of the registrant in alternate 
service. That State director will coordinate any job placement activities in any 
state outside his own with the State director of that State. In assigning a 
registrant outside his own State, the State director must have the approval 
of the 'receiving' State director or the Director of Selective Service." (emphasis 
added) 

Under the above and tangeant regulations, the Director's required involvement 
arose only if the registrant sought the Director's review of a potential job 
prior to actual assignment, or whenever the registrant was reassigned. On 
January 12, 1972, a change was prepublished in the Federal Register to omit 
the latter provision. Thus, in any involuntary job assignment to alternative 
service, the registrant could be under complete control of the 56 varying state 
headquarters' policies. 

One result is a fractured administration whereby the same employer could 
be acceptable to one region but not to another. This policy, without the 
Director's review, was not the national interest the change in Section 6(j) 
of the Act sought to serve. 

Mr. Karpatkin has read into the record one example of attitudes toward 
the American Friends Service Committee (AFSC). Let me show another view, 
expressed by the State Director of Ohio in an excerpt from a letter to the 
Dayton AFSC office Executive Secretary : 

"Certainly, the fact that the employer-organization is involved in peace 
activities should not be used as a basis for determining that other endeavors 
performed by the same organization are not in the National Health, Safety 
or Interest. Further, we fully realize that the era when draft counsellors were 
looked upon by disfavor by the Selective Service System is now past. Selective 
Service National Headquarters has undertaken an aggressive program to 
cooperate with draft information centers to the maximum extent possible. I am 
sure that you are aware that the administration of the Selective Service Law 
has taken a new direction during the past year and one-half. It is still our 
position, of course, that a Draft Counselling Service which participates in 
illegal activities (e.g., counselling registrants to wilfully violate the law) would 
not be in the National Health, Safety or Interest. However, from your letters, 
and from the reputation of your organization, it seems clear that your orga- 
nization does not participate in such illegal activities." 

The letter then concludes : 

"We trust that our current position is clear. It is not the policy of this 
headquarters to look with disfavor upon the American Friends Service Com- 
mittee as an employer in the Alternate Service Program." 

I am attaching that letter to this statement, with registrant identification 
removed, for the subcommittee's reference. 

I believe other witnesses here will elaborate further on the ramifications 
of the failure to have the Director's general oversight for the alternative 
service program. 

D. Prcpnblication Requirement of Section 13(b) of the Military Selective 
Service Act, and General Publication of Information. 
Section 13(b) of the MSSA, as amended by PL 92-129, requires a 30-day 
comment period before implementation of proposed new regulations issued 
under the Act. Such proposals are to be pre-published in the Federal Register. 
None of the regulatory issuances by Selective Service since September 28. 1971. 
indicated in the previous discussion, were prepublished with the exception of 
certain regulations to be incorporated under 32 C.F.R. 1600 et seq. Only some 



115 

of those were published; particularly omitted was a new series of directions 
and explanations for Conscientious Objector processing. 

I would note especially one particular unpublished Letter to All State 
Directors (00-44), issued November 9, 1971, which is entitled "Policy Statement 
on Deferment of ROTC Members." Therein Selective Service created a 4-year 
deferment for certain students, prior to approval of prepublished regulations 
of November 3, 1971, authorizing such action. This should be contrasted with 
removal of the general 2-S student deferment, described above. 

It is also of interest that when a man joins the military, according to this 
LASD, his status is presumed to continue that way "until reason for a change 
in his classification is a matter of record in his Selective Service file"; but 
if someone held a medical deferment of 1-Y, or if he failed to answer a current 
information questionnaire, his classification would be changed to 1-A auto- 
matically without a basis in fact for that new status being placed in the 
record. 

Continued changes come forth daily, it seems, and still the Act is ignored. 
On January 1, 1972, Selective Service issued Administrative Bulletin No. 765.1, 
which says that "all manuals, bulletins and orders or parts thereof will be 
published' in the Federal Register when required by section 3 of the Admin- 
istrative Procedure Act." That bulletin (itself unpublished), describing Selective 
Service issuances, noted that among those items having "general applicability 
and legal effect", by its own description, would be the Registrants' Processing 
Manual (RPM). Yet on January 14, 1972, in effect "upon receipt", the RPM 
was issued to local boards without publication in the Federal Register. So far, 
nothing from Selective Service has been published "as required by section 3" 
of the APA, even by their own terms, and the new RPM conflicts with 
previously issued regulations. Mr. Schulz' extended comments are designed to 
cover this issue more thoroughly. 

It is exceedingly difficult to obtain knowledge of current directives of the 
System. Subscriptions from the Government Printing Office are unsatisfactory 
when changes issued for a critical topic in June, 1971, reach the subscriber 
in February, 1972, as recently was the case for several Local Board Memoranda 
sent to draft counselors in Chicago, New York and New Jersey, I being one 
of those recipients. 

Similar problems arise in determining relevant Army Regulations, such as 
the induction medical standards. The last change was announced by the Army 
on August 10, 1971 as effective October 15, but the general public could only 
obtain the information via the Government Printing Office in late December, 
1971, after months of inductions had passed. 

Attempts to secure State Headquarter directives explaining policy and in- 
terpretation, plus copies of Operations Bulletins, have been rebuffed with the 
explanation that those items are "internal communication" items. However, 
Section 3 of the APA, 5 U.S.C. 552(a) (2) (B) explicitly provides for avail- 
ability of "those statements of policy and interpretation which have been 
adopted by the agency and are not published in the Federal Register", and 
Selective Service's own regulations, 32 C.F.R. 1606.57(d), authorize viewing 
of Operations Bulletins at local boards. 

The so-called Counselors' Newsletter issued by the Office of Public Informa- 
tion is only a monthly description — certainly not an index — of National policy 
changes, and not always complete. That publication itself has stated it could 
not provide copies of items listed for individuals, and those items have not been 
published in the Federal Register. I have appended to this statement a Subject 
Index to Major National Directives of the Selective Service System In Effect 
on January 1, 1972, to show the diversity and importance of the varieties of 
regulatory issuances. Selective Service has no index of its otcn directives, Section 
3 of the APA not withstanding, once again. 

This appended index itself demonstrates the problem of compiling lists of 
issuances unknown to the public. The November 24, 1971, Telegram to All State 
Directors covering 1-Y registrants, referred to above, was not indexed because 
its existence and the method of transmission were not previously known. 



116 

Publication of many of these policy statements, by whatever name, generally 
is required by the Federal Register Act, 44 U.S.O. 1505 and 1 C.F.R. 11.2, in 
addition to any requirements of Section 3 of the APA and Section 13(b) of the 
MSSA, as amended. 

CONCLUSION 

In light of all the foregoing, it is difficult to find an alternative to assuming 
that the Selective Service System has been grossly negligent or unwilling to 
acknowledge, let alone protect, rights of registrants covered not only by the 
Military Selective Service Act, but also by other statutes applicable to admin- 
istrative agencies generally. Although unpersuaded that conscription can be 
anything but a deprivation of our liberties, while such agencies exist, and while 
we adhere to the concept of the rule of law, I urgently request this Subcom- 
mittee, the Congress, and the other branches of government to undertake a 
full investigation of the failures of the Selective Service System to grant 
appropriate justice to the large proportion, if not all, of our nation affected by 
its activities. 

Jack Engel Shattuck. 

Attachments. 
A-September 3, 1971, Letter to All College Registrars. 
B-Letter to All State Directors (00-45). 
C-Letter to All State Directors (00-54). 
D-Telegram to All State Directors, November 2, 1971. 
E-Local Board Memorandum No. 111. 
F-Memorandum to All State Directors (GC-2). 
G-Ohio SSS Director Letter to AFSC. 
H-Letter to All State Directors (00^4). 
I-Administrative Bulletin No. 765.1. 
J-Subject Index to Selective Service System Directives. 
K-September 3, 1970, Letter to All State Directors. 



Attachment A 

September 3, 1971. 

Dear Registrar : The amendments to the Military Selective Service Act of 
1967, now before Congress, include a major policy change in undergraduate 
student deferments. The President has asked Congress for authority to phase- 
out undergraduate deferments and should the bill pass in its present form, 
as expected, the incoming freshmen class will no longer be eligible for defer- 
ments. Upperclassmen in good standing will continue to be eligible for 
deferments until they graduate, reach age 24 or cease to make satisfactory 
progress. 

The enclosed release should help you and your staff answer student ques- 
tions concerning this change. The release is also being sent to the editor of 
your student newspaper. Anything that your office can do to ensure wide 
dissemination of this information would be greatly appreciated. 

Since, in all probability, student deferments issued to freshmen this fall 
will be rescinded upon passage of the bill and since deferments extend 
induction liability until age 35, we hope your office will temporarily suspend 
the processing of Forms 109 for freshmen until there is final action on the 
pending bill. I believe this move will be in the best interest of your fresh- 
men students and will reduce the confusion and work load for both your 
office and our Selective Service boards. 

If you or members of your staff have any questions on this new policy, 
please call our Public Information Office in Washington (202 343-8621). I 
have asked this office to be prepared to receive your calls. 

For many years, the Selective Service System has received your cooperation 

and support in processing applications for student deferemnts. For these 

services, please accept my sincere thanks. Tour further cooperation during 

the period of phasing out student deferments also will be greatly appreciated. 

Sincerely, 

Curtis W. Tarr. 

Enclosure. 



117 

Attachment B 

November 15, 1971. 

To: All State Directors (00-45). 
Subject : Government appeal agents. 

The proposed changes in the Selective Service Regulations do not provide 
for the position of Government Appeal Agent. Consequently, these positions 
will be phased out, consistent with the orderly processing of cases in 
which Government Appeal Agents are now involved. 

While the opportunity to be afforded a registrant to meet with the Gov- 
ernment Appeal Agent has not been established as a basic procedural right 
of the equivalence of the right to a personal appearance or appeal, it is never- 
theless desirable that registrants be permitted to have such meetings when 
a request has already been made. Therefore, Government Appeal Agents are 
authorized and requested to complete their interviews in any case where 
appointments with the Government Appeal Agent are scheduled prior to 
December 10, 1971, and to make recommendations for reopening classifications 
and take appeals as authorized under the present Parts 1625 and 1626 of the 
Regulations, until December 10, 1971. 

These experienced and dedicated Government Appeal Agents should be 
considered as a prime source for future local board members, appeal board 
members, and advisors to registrants. 

Daniel J. Cronin, 
Assistant Deputy Director, Operations. 



Attachment C 

January 14, 1972. 

To: All State Directors (00-54). 

Subject : Notice of Right to Personal Appearance and Appeal. 

Inasmuch as the current printing of the Notice of Classification, SS Form 
110, does not include information concerning procedural rights, a "Notice 
of Right to Personal Appearance and Appeal" shall be attached to any such 
SSS Form 110 which is issued or mailed to a registrant as a result of a 
local board classification action. 

A new version of the "Notice of Right to Personal Appearance and Appeal" 
is being printed. This version conforms to the revised Sections 1624 and 
1626 published in the Federal Register on January 12, 1972, and will, upon 
receipt, supersede the notice described in our telegram of November 2, 1971. 
A supply of these new notices will be furnished to each state headquarters, 
and should be distributed to the local boards in the most expeditious manner. 

These instructions are canceled upon receipt of SSS Form 110 with the 
procedural rights information printed thereon. 

Effective February 1. 1972, and thereafter, all registrants will be informed 
of classification actions on the new SSS Form 110. All obsolete SSS Form 

110's shall be destroyed. 

Daniel J. Cronin, 
Assistant Deputy Director, Operations. 



Attachment D 

November 2. 1971. 

From : Washington, D.C., November 2, Director Selective Service System of 
Puerto Rico, 398 Fernandez Juncos Ave., San Juan P.R., via WUINY. 

Classification actions by local boards shall be resumed immediately. The 
applicable provisions of LEM's No. 55 and 122 will still be applicable. No 
personal appearances shall be held until the new regulations become effective. 
Pending issuance of revised SSS Form 110, a notice containing the following 
language shall be attached to any SSS Form 110, as a supplement to informa- 
tion already contained therein, which is mailed to a registrant as a result of 
a local board classification action : 

"Under proposed regulations, if you are classified or reclassified, you will 
be entitled to a personal appearance before your local board at which you 
may prosent up to three witnesses. You may also appeal to the appeal board, 



118 

and personally appear before the appeal board. If you wish to request an 
appeal and/or a personal appearance, notify your local board in writing 
within 30 days of the date shown on your SSS Form 110." 

Appeal boards shall resume classification actions in any cases where the 
registrant's appeal period expired prior to September 28, 1971, but shall 
delay action in any cases where the registrant's appeal period expired on 
or after September 28, 1971. Where an appeal board classifies a registrant 
into class 1-A, l-OA-0 or 1-0 by less than a unanimous vote, the local 
board shall attach to the SSS Form 110 which is mailed to the registrant, 
a notice containing the following language : 

"Under proposed regulations, you will be entitled to appeal to the national 
selective service appeal board, and personally appear before that board. If you 
wish to appeal and/or if you also wish to request a personal appearance, 
notifv vour local board in writing within 30 days of the date shown on your 
SSS Form 110." 

Curtis Tare, 
Selective Service System, Washington, D.C. 



Attachment E 
Local Board Memorandum No. Ill 

Issued : August 11, 1970, as amended, April 23, 1971. 
Subject : Reopening of Registrant's Classification. 

1. In the exercise of authority under Selective Service Regulations Section 
1625.2 with respect to claims that are made by registrants prior to the mailing 
of the Order to Report for Induction (SSS Form 252), the local board will 
be guided by the following language of the United States Supreme Court in 
Mulloy v. United States 398 U.S. 410, 416 (June 15, 1970) : 

Where a registrant makes nonfrivolous allegations of facts that have 
not been previously considered by his (local) Board and that, if true, 
would be sufficient under regulation or statute to warrant granting the 
requested reclassification, the Board must reopen the registrant's classi- 
fication unless the truth of these new allegations is conclusively refuted 
by other reliable information in the registrant's file. 
The above quotation, it is believed, may fairly be interpreted as defining 
the kind of a case requiring reopening of a registrant's classification unless 
there is clear refutation contained in the file. Particular attention must be 
given to insure that local boards observe the "if true" qualification in acting 
either to reopen or deny a reopening of a classification. 

2. Claims submitted by a registrant after the mailing of the Order to 
Report for Induction (SSS Form 252), will continue to be processed 
under the provisions of section 1625.2(b) of the regulations. Claims for classi- 
fication in Class 1-0 or I-A-O received by the local board after the mailing 
of the Order to Report for Induction (SSS Form 252) may not be considered. 
Written information relevant to such claims shall be placed in the registrant's 
Cover Sheet (SSS Form 101). 

Curtis W. Tarr, 



Attachment F 

April 30, 1971. 
Memorandum to all State Directors (GC-2). 

Subject : Conscientious Objector Claims After the Order to Report for In- 
duction. 

Local Board Memorandum No. Ill, revised April 23, 1971, in relevant part, 
provides : 

Claims for classification in Class 1-0 or I-A-0 received by the local 
board after the mailing of the Order to Report for Induction (SSS Form 
252) may not be considered. Written information relevant to such claims 
shall be placed in the registrant's Cover Sheet (SSS Form 101). 



119 

Local boards should continue to implement the provision of section 1621.11 of 
Selective Service Regulations which reads : 

The local board, upon request, shall furnish to any person claiming 
to be a conscientious objector a copy of (the) Special Form for Con- 
scientious Objector (SSS Form 150). 
Executive Secretaries of local boards should inform registrants who make 
inquiries or who file the SSS Form 150 or other written representations with 
respect to claims for classification in Class 1-0 or I-A-0 after the Order 
to Report for Induction (SSS Form 252) has been mailed that such claims 
cannot be considered by the Selective Service system but that such claims 
must be submitted to the armed force in which they are inducted. 

Walter H. Morse, 

General Counsel. 



Attachment G 

May 6, 1971. 
Subject: SS No. 50. 

Dear Mr. Thomson : This will refer to your letter of May 3, 1971, and to our 
earlier correspondence. 

In your letter, you mentioned specifically a letter issued from this head- 
quarters to the State Director for Selective Service in New York, dated 
December 23, 1970. concerning subject registrant. We have reviewed this letter, 
along with the information provided in your letters, and have concluded that 
our letter of December 23, 1970 does not adequately or properly state the 
policy of this headquarters. 

We believe that your point is well taken, and that this headquarters should 
not attempt to influence the decision made by any local board in a specific 
case as to whether or not a type of civilian work is appropriate. Certainly, 
the fact that the employer-organization is involved in peace activities should 
not be used as a basis for determining that other endeavors performed by the 
same organization are not in the National Health, Safety or Interest. Further, 
we fully realize that the era when draft counsellors were looked upon by dis- 
favor by the Selective Service System is now past. Selective Service National 
Headquarters has undertaken an aggressive program to cooperate with draft 
information centers to the maximum extent possible. I am sure that you 
are aware that the administration of the Selective Service Law has taken a 
new direction during the past year and one-half. It is still our position, of 
course, that a Draft Counselling Service which participates in illegal activ- 
ities (e.g., counselling registrants to wilfully violate the law) would not be 
in the National Health, Safety or Interest. However, from your letters, and 
from the reputation of your organization, it seems clear that your organiza- 
tion does not participate in such illegal activities. 

All this is not to say that the final discretionary decision as to whether or 
not a particular job is "appropriate", can be made at any level in the System 
other than at the local board. The Selective Service Law clearly rests this 
final responsibility at that level. However, it is also clear that letters such as 
the one which emanated from this headquarters December 23, 1970, could 
exercise an undue influence upon a local board. 

Accordingly, we are taking steps which we hope will have the effect of 
remedying any adverse reaction which may have been caused by our letter 
of December 23. 1970. We are furnishing a copy of this letter to the State 
Director for New York City, along with a letter addressed to him (copy at- 
tached) suggesting that, if he deems it appropriate, the matter be presented 
once more to subject registrant's local board. We trust that this procedure 
will allow his local board to consider the proposed employment on its merits 
without any influence from this headquarters. 

We trust that our current position is clear. It is not the policy of this head- 
quarters to look with disfavor upon the American Friends Service Committee 
as an employer in the Alternate Service Program. 

We hope we have been of service to you. 
Sincerely yours, 

Thomas S. Farrell, 
Colonel, AGC, State Director. 



120 

Attachment II 

November 9, 1971. 

To All State Directors (00-44). 

Subjecl : Policy statement on deferment of ROTO members. 

To assist the Selective Service System in continuing a uniform procedure 
in classifying registrants who are satisfactorily participating in an ROTC 
program, the following comments set forth our understanding with the De- 
partment of Defense : 

(Local Board Memorandum No. 1, 45 and 104 relate to ROTC) 

1. Four-year Program. 

Upon enrollment into an ROTC program and after completion of an "ROTC 
Deferment Agreement" the responsible Professor of Military Science, Pro- 
fessor of Naval Science or Professor of Aerospace Studies will submit a DD 
Form 44 (Record of Military Status of Registrant) to the enrollee's selective 
service local board. Upon receipt of a DD Form 44, the registrant's local 
hoard shall place him in Class I-D, and retain him in this classification until 
reason for a change in his classification is a matter of record in his selective 
service file. 

If a DD Form 44 is issued after a registrant has been issued an order to 
report for induction, he will be expected to report for induction under the 
guidelines provided for induction of other students. 

2. Two-year Program. 

Local Board Memorandum No. 104, as amended August 10, 1970, remains 
in effect. The local board memorandum provides for postponement of the date 
a registrant is to report for induction if he is under such an outstanding order 
providing the Professor of Military Science or Professor of Aerospace Studies 
furnishes a form letter during the spring term confirming the registrant's 
acceptance for training in an ROTC Basic Camp that following summer. If he 
is under an order to report for induction and an enrollment letter is received, 
he shall be issued SSS Form 264 (Postponement of Induction) and the re- 
porting date postponed until October 31 of that year. If he is accepted for 
the summer basic camp and is later reached for induction, his local board 
will issue an SSS Form 252 (Order To Report For Induction) and postpone 
his date of induction until October 31. providing the appropriate form letter 
is in his selective service file. 

If the registrant enters an Advanced ROTC Program that fall, the Pro- 
fessor of Military Science or Professor of Aerospace Studies will issue a DD 
Form 44 and upon its receipt, the registrant will be considered for Class I-D. 
If a DD Form 44 is not received by October 31, if the registrant drops from 
the basic camp, or if he fails to enroll in the fall course, his postponement 
shall be terminated at that time and he shall be placed on the local board's 
induction call when he is reached. 

3. Registrants who have been awarded ROTC Scholarships but who have 
not yet enrolled in the ROTC Program will be issued their orders to report 
for induction, when reached, and then postponed until October 31 of that 
year. If a registrant is under an outstanding order to report for induction, 
he shall be postponed until October 31 of that year. 

If the registrant enrolls in college and enters the ROTC Program on an 
ROTC Scholarship and a DD Form 44 is received, he will be considered for 
Class I-D. If a DD Form 44 is not received by October 31, his postponement 
shall be terminated at that time and he shall be placed on the local board's 
induction call, when reached. 

Daniel .7. Croxix, 
Assistant Deputy Director Operations. 



Attachment I 

ADMINISTRATIVE BUIXETIX NO. 7 05.1 

Issued : January 1. 1972. 

Subject: Selective Service System Publications — Media and Numbering. 

PART I — OFFICIAL ISSUANCES 

1. Introduction. — This Administrative Bulletin rescinds Headquarters Order 
No. 5, issued July 26. 194S. amended July 17. 1070. AU discontinued extant 
issuances will remain valid until rescinded or superseded. 



«H 



121 

2. General. — Official Selective Service System issuances governing the con- 
trol and operation of the National Selective Service System shall be confined 
to those publications described below. Except as provided in subsection a, 
all manuals, bulletins and orders or parts thereof will be published in the 
Federal Register when required by section 3 of the Administrative Procedure 
Act. 

a. Selective Service Regulations. — implement the provisions of Public Law 
and govern functions of the Selective Service System and have general appli- 
cability and legal effect. They will be issued by the Director pursuant to 
authority contained in Executive Orders 9979 and 11623 and section 6(j) of 
the Military Selective Service Act, and will be published in the Federal Regis- 
ter in accordance with section 13(b) of the Military Selective Service Act. 

b. Selective Service Manuals. — promulgate doctrine, policy, techniques and 
procedures. They contain instructional, informational and reference material 
relative to Selective Service administration, training and operations. Selective 
Service Manuals are issued by the Director. 

(1) Registrants Processing Manual. — defines agency doctrine and contains 
operational procedures of a continuing nature involved with the processing 
of registrants. It has general applicability and legal effect. It consists of three 
sections, (a) Text, (b) Operational forms including procedural directives and 
(o an appendix consisting of operational instructions of a temporary nature. 

(2) Manpoxocr Administration Policy and Procedures Manual. — sets forth 
the regulatory, policy and procedural requirements for (a) the preparation 
and implementation of plans lor the control and utilization of manpower re- 
sources; (b) the development of personnel policies and personnel procedures, 
including positive action programs to promote equal employment opportunity 
for minority groups and for women; (c) supervising the application of per- 
sonnel policies and personnel plans in the management of all personnel of the 
Selective Service System; (d) the preparation and implementation of plans 
required to meet the training needs of the Selective Service System, including 
thf management of the military reserve program. 

(3) The Fiscal and Procurement Manual. — furnishes the essential directives, 
instructions and procedures pertaining to fiscal and procurement functions. 

(4) Training Manuals. — contains instructional, informational and reference 
material relative to training of all elements throughout the system. 

(5) The Administrative Forms Reference Manual. — provides (a) Procedural 
Directives, (b) Flow Charts, and (c) facsimiles of administrative forms pre- 
scribed by the Director and selected forms of other agencies which relate to 
Selective Service. This manual will be used primarily as a reference manual 
and will be maintained by the Manager, Administrative Services Division. 

e. Selective Service Bulletins. — disseminate instructions of a permanent or 
semipermanent nature requiring prompt and continuing action and/or dis- 
seminate information pertaining to matters of current interest. 

(1) Administrative Bulletins. — will be issued by the Director and contain 
general administrative and records management instructions. 

(2) Inspection Set-vices Bulletin. — contain informative items and messages 
of general interest and will be issued by the Assistant Deputy Director for 
Operations. 

(3) Data Processing Bulletins. — disseminate technical information and guid- 
ance relative to data processing and will be issued by the Assistant Deputy 
Director for Administration. 

d. Letters to All State Directors. — provide information or instructions of a 
transitory and temporary nature and will be issued by the Director. 

e. Letter Orders. — will be issued by the Director and announce the changes 
in key personnel assignments at State Headquarters and Service Centers . 

f. Presidential Appointment Orders. — will be issued by the Director and 
announce administrative actions concerning uncompensated personnel appointed 
by the President. 

g. Director Appointment Orders. — will be issued by the Director and an- 
nounce administrative actions concerning uncompensated personnel appointed 
by the Director. 

3. National Headquarters. — Orders and Memoranda for the guidance of Na- 
tional Headquarters, follow : 

a. Headquarters Orders. — apply to the operation of National Headquarters 
and will be issued by the Director. 



122 

1). Memoranda to Staff and Division Chiefs. — constitute a media of commu- 
nication to members of the Director's Staff and Division Chiefs and will be 
issued by the Director. 

c. Memoranda to All Personnel. — supply information or instructions to all 
employees and will be issued by the Director. 

PART II — NUMBERING SYSTEM 

1. General. — A numbering system for the classification of subject matter 
will be used throughout these publications. The numbering system as de- 
scribed and illustrated below will be standardized and used to classify docu- 
ments and the content thereof. 

Series Title 

000. Indexes, general 

010. Index to Public Information Issuances 

015. Index to Legislative and Liaison Issuances 

020. Index to General Counsel Issuances 

030. Index to Comptroller Issuances 

040. Index to Plans and Analysis Issuances 

045. Index to Inspection Services Issuances 

050. Index to Manpower Administration Issuances 

060. Index to Operations Issuances 

070. Index to Administration Services Issuances 

080. Index to Automated Data Processing Issuances 

100. Public Information, general 

115. Publications, Public Information 

120. News Releases 

125. Public Relations 

130. Protocol 

150. Legislation and Liaison, general 

160. Legislation pertaining to Selective Service 

ISO. Relations with Congress and its Members 

200. Legal, general 

220. Selective Service Act 

240. Selective Service Regulations 

260. Regional Field Attorneys 

280. Court Proceedings 

300. Comptroller, general 

305. Fiscal and Procurement Manual 

310. Pay and Related Subjects 

330. Travel 

340. Transportation of Things 

360. Vouchering and Scheduling 

380. Accounting Records and Procedures 

300. Service Centers, general 

400. Plans and Analysis, general 

410. Conferences 

430. Research and Studies 

440. Contingency Planning 

450. Inspection Services, general 

455. Inspection Services Bulletins 

500. Manpower Administration, general 

505. Manpower Administration Policy and Procedures Manual 

510. Personnel, general 
520. . Uncompensated Personnel 

540. Compensated Personnel 

550. Military Personnel 

560. Training 

570. Equal Employment Opportunity 

5S0. Organization and Staffing 

600. Registrant's Processing Manual 

602. Definitions 

603. Local Board Procedures 
606. General Administration 

611. Responsibility and Duty to Register 
613. Registration Procedures 






123 

Series Title 

619. Termination of Accountability 

621. Preparation for Classification 

r.UL'. Classification Rules and Principles 

623. Classification Procedures 

624. Appearance before Local Board 

625. Reopening Registrant's Classification 

626. Appeal to Appeal Board 
<;27. Appeal to tbe President 
628. Physical Examination 

630. Volunteers 

631. Selection 

632. Delivery and Induction 

655. Processing of Registrants Residing in Foreign Countries 

660. Alternate Service in Lieu of Induction 

695. Reports 

TOO. Administrative Services, general 

705. Communications, general 

710. Administrative Records 

720. Forms 

725. Administrative Form Reference Manual 

730. Procurement 

740. Property Management 

750. Space Allocation and Utilization 

760. Printing and Duplicating 

765. Publications 

7S0. Motor Vehicles 

790. Mail and Distribution 

800. Automated Data Processing, general 

805. Data Processing Bulletins 

2. Consecutive Numbering 

2.1 Publications, for which entering a number indicating sequence by cal- 
endar year is prescribed herein, will be numbered with the calendar year 
designation following the sequence number. 

Example : Headquarters Order No. 1.72 

2.2 Sequence numbers on publications for which entering a subnumber indi- 
cating sequence of issuance is prescribed herein, will follow preceding numeri- 
cal designations. 

Example : Administrative Bulletin No. 650.1 

2.3 The Reports and Document Control Manager will maintain a control 
ledger and will enter all sequence numbers on publications requiring sequential 
identification. 

3. Selective Service Regulations (SSR) 

3.1 Numbering-. Selective Service Regulations are numbered by the General 
Counsel within the series of numbers assigned to the Selective Service System 
in the Code of Federal Regulations by the National Archives and Records 
Service. 

4. Registrants Processing Manual (SSRPM) 

4.1 Numbering. The Selective Service Registrants Processing Manual will 
be identified with the subject number 600. Separate chapters or parts will be 
assigned appropriate individual subject numbers. 

5. Selective Service Manpower Administration Policy and Procedures Manual 
(SSMAP) 

5.1 Numbering. The Selective Service Manpower Administration Policy and 
Procedures Manual will be identified with the subject number 505. Separate 
chapters, sections or parts may be assigned appropriate individual subject 
numbers. 

6. Selective Service Fiscal and Procurement Manual (SSFPM) 

6.1 Numbering. Each chapter of the Selective Service Fiscal and Procure- 
ment Manual is numbered according to classification of subject matter (par. 
1) and a subnumber indicating sequence of issue (par. 2.2). 

Example: Chapter 3. 330.1. Trnvel. 

7. Selective Service Training Manuals (SSTM) 

7.1 Numbering. Training Manuals are each assigned a basic number indi- 
cating the subject matter (par. 1) and a subnumber indicating sequence of 
issue (par 2.2). 



124 

Example: Training Manual No. 623.1 Classification Procedures 

8. Selective Service Administrative Forms Reference Manual (SSAFM) 

8.1 Numbering. Each form in the Selective Service Administrative Forms 
Reference Manuals will be appropriately numbered. The manual will not be 
numbered. 

9. Selective Service Administrative Bulletins (SSAB) 

9.1 Numbering. Selective Service Administrative Bulletins are numbered 
according to classification of subject matter (par. 1) and a subnumber indi- 
cating sequence of issue (par. 2.2). 

Example : Administrative Bulletin No. 780.1 

10. Selective Service Inspection Services Bulletins (SSIB) 

10.1 Numbering. Selective Service Inspection Services Bulletins are assigned 
number 455 followed by a sequence number. 

Example : Inspection Services Bulletin No. 455.1 

11. Selective Service Data Processing Bulletins (SSDPB) 

11.1 Numbering. Selective Service System Data Processing Bulletins are 
assigned number 805 followed by a sequence number. 
Example : Data Processing Bulletin No. 805.1 

12. Selective Service Letters to All State Directors (SSLSD) 

12.1 Numbering. Selective Service Letters to All State Directors are num- 
bered according to classification of subject matter (par. 1) and a subnumber 
indicating sequence of issue (par. 2.2). 

Example : Letter to All State Directors No. 760.1 

13. Selective Service Letter Orders (SSLO) 

13.1 Numbering. Letter Orders are numbered consecutively by calendar year 
(par. 2.1). 

14. Selective Service Presidential Appointment Orders (SSPAO) 

14. Numbering. Presidential Appointment Orders are numbered consecu- 
tively by calendar year (par. 2.1). 

15. Selective Service Director Appointment Orders (SSDAO) 

15.1 Numbering. Director Appointment Orders are numbered consecutively 
by calendar year (par. 2.1). 

16. Selective Service Headquarters Orders (SSHO) 

16.1 Numbering. Selective Service Headquarters Orders are numbered con- 
secutively by calendar year (par. 2.1). 

17. Selective Service Memoranda to Staff Officers and Division Managers 
(SSMSD) 

17.1 Numbering. Selective Service Memoranda to Staff and Division Man- 
agers are numbered consecutively by calendar year (par. 2.1). 

18. Selective Service Memoranda to All Personnel (SSMAP) 

18.1 Numbering. Selective Service Memoranda to All Personnel are not num- 
bered and should be destroyed when each purpose has been served. 

PART III — REVISIONS AND RESCISSIONS 

1. General. — Issuances announced in this bulletin may be revised and re- 
scinded as described and illustrated below. 

a. Revisions. — A revision is a rewrite and reissue of an existing publication 
that supersedes itself. The revised document bears a new date, and carries 
the same number as the original document ; however, the number is followed 
by a revised sequence number. 

Example : Letter to All State Directors No. 605.1 upon first revision be- 
comes Letter to All State Directors No. 605.1.1. 

The revised publication bears a new date and includes a supersession foot- 
note on the title page. 

Example: Supersedes SSLSD No. 605.1, 7/9/72 

b. Rcscissi07is. — A rescission is the cancellation of a publication by the office 
which had originated the document. It carries the same number as the original 
document followed by a revision sequence number. The rescinding message 
will refer to the number of the latest printing of the document and the effec- 
tive date of rescission. 

Example: "SSLSD No. 605.1, July 9, 1972 is rescinded effective December 1, 
1972." 

Byron V. Pepitone, 

Deputy Director. 



125 

Attachment J 

Subject Index to Major National Directives of the Selective Service 
System in Effect on January 1, 1972 

American Friends Service Committee, 

15 Rutherford Place, New York, N.Y. 

(Bv Yaakov Ibn Ezra (Jack Engel Shattuck). Draft Counseling Coordinator, 

AFSC) 
Description : Cited hfTtin as ~ 

(1) Local board memoranda For example, 

^ LBM (105). 

(2) Letters to all State directors (Operations Division For example, 

Series). LASD (00-43). 

(3) Memoranda to all State directors (Office of the For example, 

General Counsel). MASD (GC-7) 

(4) Operations Bulletin No. 338, June 18, 1970 (Ops. Bull. 338) 

(5) Letter to all college registrars, Sept. 3, 1971 (College letter.) 

(6) Personal letter to all State directors, Oct. 1, 1971__ (PLASD). 

(7) Telegram to all State directors, October 1971 (October TASD). 

(8) Telegram to all State directors, Nov. 2, 1971 (November 

TASD). 

(1) LBMs are available by subscription, $4 prepaid to the Superintendent of 
Documents, Government Printing Office, Washington, D.C. 20402. Writers should 
request Catalogue Number Y 3 Se 4:13-2/ and should receive in return all 
current LBMs to date. Changes will be mailed after issuance. 

(2, 3) LASDs and MASDs •will be supplied to the large draft counseling 
publications, including SSLR. who can publish pertinent materials" whereas 
"it will not be possible to furnish copies of items ... to individual counselors" 
because of the numbers which are involved. (SSS Office of Public Information, 
Counselors' Newsh iter, 12/30/70—1/31/71) 

The Counselors' Newsletter is a descriptive list of directives, 'tho not an 
index required by the Administrative Procedure Act (APA, or "Freedom of 
Information Act"), Section 3(a)(2), 5 U.S.C. 552(a)(2). Readers may sub- 
scribe to the list without cost by writing to : Educational Programs Officer, 
SSS Public Information Office, 1724 F St. N.W., Washington, D.C. 20435. It 
is issued monthly. 

(4) OPS. BULL. 338 may be inspected at the office of any local board. State 
Director or National Headquarters of Selective Service. 32 C.F.R. [Regulation] 
1606.57(d). 

(5-8) Other letters and telegrams specified above are found in the Selective 
Service Law Reporter, SSLR (Lib. of Congress No. 68-28669), at pages 2200:81 
and 2200 :86 f. 

All of the cited items (1-8) should be available for inspection and copying 
at offices of local boards or State and National Headquarters of Selective 
Service, although the degrees of cooperation mav vary. Tiichinsku v. Selective 
Service System, 418 F.2d 155, 2 SSLR 3359 (7th Cir. 1969). Otherwise, see 
generally pages SSLR 2157 ff. for items covered by this index. 

Subscriptions are available from SSLR, 1346 Connecticut Avenue N.W., 
Dupont Circle Building. Suite 610, Washington, D.C. 20036, at a variety of 
rates. 

AFSC would appreciate receiving your comments concerning this SSS DI- 
RECTIVES INDEX. 

Users are invited to reprint or otherwise utilize this index as befits such 
needs. 

effective date of indexed materials 

(1) Local board memoranda and (4) OPS. BULL. 338 generally remain in 
effect, as issued or amended until rescinded. Rescission dates are listed below. 

(2, 3) LASDs and MASDs more frequently supersede in toto similar earlier 
issuances on the same topic, or may continue earlier directives in effect while 
providing additional information on a subject. Rescinded items are listed 
below. 

(5-8) Other letters and telegrams remain effective insofar as they meet the 
purpose for which they were expressly issued. 

80-G20— 72 9 



126 

Selective Service Regulations (32 C.F.R. 160 ct seq.) would usually take 
precedence over these materials, but contradictions occasionally occur. For 
instance. Cf. Regulation 1631.6 v. LBM 99 v. LASD (00-51), on Order of Call. 



RESCISSION DATES OF LBM'S 


3. Oct. 12,1951 


28. Aug. 31,1961 


60. Mar. 1,1962 


4. Oct. 27,1948 


29. Jan. 6, 1956 


62. June 14, 1971 


5. Aug. 31,1961 


33. June 22, 1970 


69. June 14,1971 


6. Oct. 12, 1951 


34. Feb. 29, 1952 


74. June 22, 1970 


7. (Pre-April. 1954) 


35. Dec. 29, 1961 


75. June 22, 1970 


8. Mar. 1, 1956 


36. Dec. 29, 1961 


81. Apr. 19,1968 


9. Aug. 31,1961 


37. Dec. 29, 1961 


82. Nov. 2,1970 


10. Dec. 29, raei 


39. Mar. 1, 1956 


83. Nov. 10,1971 


11. Dec. 29,1961 


40. Jan. 31,1954 


84. Nov. 10,1971 


12. Nov. 6,1950 


41. Aug. 27,1970 


87. Nov. 10,1971 


13. June 22, 1970 


42. Aug. 31,1953 


88. Apr. 23, 1970 


15. Oct. 12,1951 


46. Jun. 15,1962 


92. Nov. 10,1971 


18. Nov. 21,1951 


47. Jan. 6, 1956 


95. Nov. 10,1971 


19. Oct. 12,1951 


48. Feb. 19, 1965 


96. June 22, 1970 


20. July 23, 1954 


49. Dec. 29,1961 


100. Sept. 26,1970 


21. Aug. 31,1961 


50. Jan. 6, 1956 


108. Sept. 26,1970 


22. Oct. 23,1967 


51. Aug. 31,1961 


110. Nov. 27,1970 


24. Mar. 2,1953 


53. Feb. 24, 1966 


117. Nov. 3,1971 


25. May 6. 1954 


54. Feb. 19, 1965 


118. Sept. 8,1971 


26. Oct. 12,1951 


58. Aug. 23,1957 


122. Dec. 10, 1971 


RESCISSION DATES OF LASD'S 


00-2 Nov. 10, 1970 


00-11 Nov. 10, 1971 


00-26 June 25, 1971 


00-6 Dec. 8,1970 


00-13 1971 


00-27 Oct. 5,1971 


00-9 July 16 ,1971 


00-15 1971 


00-49 Jan. 1972 



Following references to PL 92-129 are to the Draft Extension Act which 
was signed into law on September 28, 1971 (85 Stat. 348). 

Section 101(a) (32) of PL 92-129 contains the following provision, amending 
the Military Selective Service Act: 

... no regulation issued under this Act shall become effective until the 
expiration of thirty days following the date on which such regulation 
has been published in the Federal Register. After the publication of any 
regulation and prior to the date on which such regulation becomes effec- 
tive, any person shall be given the opportunity to submit his views to 
the Director on such regulation, but no formal hearing shall be required 
on any such regulation. 
None of the following indexed items were published in the Federal Register 
before being put into effect by the Selective Service System. 

EXEMPT FROM REGISTRATION 

Aliens (16) (118) ; Students at military colleges (45) ; Other military status 
affecting non-registration (45) (70) (90) 

REGISTRANTS OUTSIDE CONTINENTAL UNITED STATES 

General procedures (73) ; Local board 100 (73) : Transfer to another board 
from local board 100 (73) ; Alaskan residents (59) ; Cuban residents (73) ; 
Postponement of physicals/induction (116) ; AFEES processing in accord with 
LBM 116 (00-32) ; Physicals/induction processing/1- W work outside the 
United States (73) 

Classifications 

i-a: available for military 

Reconsidering classification/reopening for lottery exposure (99) : Affected 
by revised mental standards of 1/1/72 (00-52) ; Reordering to physical after 
failure to report/submit following GutJcnecht v. U.S. (106) ; 30-day notice of 
induction (PLASD) See also: Priority Processing & Order of Call, See also: 
Doctors and Allied Specialists 






127 

l-A-O, l-O, 1-W: CONSCIENTIOUS OBJECTORS 

Criteria for Conscientious Objection (107) ; Non-combatant service defined 
(32) ; Affected by revised mental standards of 1/1/72 (00-52) ; Delinquency 
at physical (14) (64) (100) ; Volunteer for civilian work (04) (Oct. TASD) ; 
Postponement of work order (04) ; Extended Priority and Order of Call for 
l-O (00-51) ; 30-day notice for induction of l-A-O (PLASD) ; 30-day notice, 
retroactive credit for 1-W work (Oct. TASD) ; Appropriate work (98) ; Civil- 
ian work in another state (102) ; Overseas work (73) ; Reopening (111) ; Post- 
induction-order claims (111) (GC-2) : Court procedure (103) ; Prosecution de- 
termined by Regional Attorney (GC-6) ; Records of COs in World War II 
(01) ; Classification not extension of liability (38) See also: Priority Process- 
ing & Order of Call, See also : Doctors and Allied Specialists 

l-C: ACTIVE MILITARY (& STUDENTS), NATL. OCEANIC & ATMOSPHERIC 
ADMINISTRATION [NOAA], PUBLIC HEALTH SERVICE, BUREAU OF PRISONS 

When exempt from registration (70) ; Public Health registration (00) ; Post- 
pone/cancel the physical/induction after years in the military (66) ; 6 years 
status/over 20 completes liability (00-29) ; Enlistment when ordered for in- 
duction (00-14) ; Ranks in the Armed Forces — Attachment to LBM (SO) ; 
Classification not extension of liability (38) See also: Doctors and Allied 
Specialists 

i-d: national guard, reserves, rotc 

When exempt from registration (45) (70) ; When liability extended (3S) 
(67) ; Notification of status to local board (1) (104) ; Policy statement on 
ROTC members (00—44) ; Reserve branches identified (66) ; Students at mili- 
tary colleges (45) : Doctors and allied specialists (77) (90) (00-19) ; Clergy (79) ; 
Availability for active service (79) (00-47) ; Class 1-R for "dual" status (79) ; 
Class 2-R for critical occupation (79) ; Procedures to notice availability (80) ; 
Procedures to report enlistments (93) ; Unsatisfactory performance and prior- 
ity induction (63) (00^47) : Postpone/cancel the physical/induction after 6 
years in the military (66) ; Postpone induction for ROTC Summer Camp 
'(104) ; Induction beyond age 26 (67) 

l-S(C): COLLEGE STUDENT AFTER RECEIPT OF INDUCTION NOTICE 

Extends liability (3S) (67) ; Not applicable to 1-0 (64) ; Reopening and 
reconsidering for lottery exposure (99) 

2-A : ESSENTIAL (NON-AGRICULTURE) ACTIVITIES & CERTAIN STUDENTS 

Extends liability (38) (67) ; Late information from school affecting student 
placement in Extended Priority (00-4S) ; State Advisory Committee findings 
for non-medical 2-As (00-37) ; Grad school teaching (96) : Reservist Class 
2-R (79) ; Availability after April 22, 1970 (Ops. Bull. 33S) ; Inappropriate for 
1-W work (9S) ; Reconsidering/ reopening for lottery exposure (99) ; Induc- 
tion postponement for non-degree study (112) ; Induction postponement with 
essential job phase-outs (Ops. Eull. 338) : Student and teacher induction post- 
ponement following PL 92-129 passage (PLASD) See also: Doctors and Allied 
Specialists 

2-C : ESSENTIAL AGRICULTURE ACTIVITIES 

Extends liability (38) (67) ; Availability after April 22, 1970 (105) ; Recon- 
sidering/reopening for lottery exposure (99) 

2-D: STUDENTS (PRE-) ENROLLED FOR MINISTERIAL STUDIES 

Reconsidering/reopening for lottery exposure (99) 

2-S : COLLEGE STUDENTS GENERALLY 

Extends liability (38) (67) ; General definition— credit loss (43) ; 1971-72 
Freshman Form 109 withheld at SSS request (College letter) ; Late informa- 
tion from school affecting placement in Extended Priority (00-4S) ; Grad school 
teaching (96) ; Graduating student with special exam to practice specialty 
(44) ; Military colleges (45) ; Reconsidering/reopening for lottery exposure 



128 

(99) ; Induction postponed during school year, generally (112) ; Induction post- 
ponement following PL 92-129 passage (PLASD) 

3-a: paternity and hardship deferment 

When liability extended (38) (87) ; Paternity deferment not available to 
doctors (77) ; Cooperation between SSS and the Red Cross (27) ; Armed Forces 
dependency allotment (17); Availability after April 22, 1970 (105) (Ops. Bull. 
33S) ; Reconsidering/reopening for lottery exposure (99) 

4-a: completed military obligation 

When exempt from registration (70) : Physical/induction for special reg- 
istrants (Doctors and allied specialists) (77) ; 6 years' military status/over 26 
completes liability (00-29) ; Cooperation between SSS and Veterans Admin- 
istration (86) : Classification not extension of liability (38) 

4-c: aliens 

When exempt from registration (16) (118) ; When exempt from Armed 
Forces service (16) (23) (76) : Illegal entry and deportation — Immigration and 
Naturalization offices (31) ; Classification not extension of liability (38) 

4-d: clergy 

Definition (56) ; Interrupting undergrad study (43) ; Reservists (79) ; Clas- 
sification not extension of liability (38) 

4-f: unfit under physical/mental/administrative standards 

When liability extended (38) (67) ; Procedures for special registrants (Doc- 
tors and allied specialists) (77) : Qualifications — when local board decides 
(65) ; Obvious disqualifications (78) ; Medical interview discretionary (113) ; 
Transfers of physicals (116) ; Economical/efficient delivery to AFEES (00- 
33); Billeting and feeding AFEES subjects ( 00-3 )( 00-7 ) ; Overseas regis- 
trants (73) ; Disqualified registrants able to volunteer (89) : Mental standards 
(94) (00-52); Reordering physical after failure to report/submit following 
Gutknecht v. US (106) Submission of new evidence (121) : 3-day AFEES exam 
(109) ; Contact lenses not used at physical (109) ; Medical Reevaluation and 
Review System, USAREC appeal of findings (121) 

overage of liability 

Doctors and allied specialists (77) ; Turning 26 without extended liability 
(99) ; Status not an extension of liability (38) 

EXTENDED LIABILITY 

What constitutes deferment and extension of liability (38) (67) ; Inapplicable 
when never liable (38) ; Effect of student deferment under PL 92-129 (College 
letter) ; Induction over 26 (38) (67) (99) 

PRIORITY PROCESSING AND ORDER OF CALL 

Delinquency processing ended (101) ; Random Sequence Numbers (RSNs), 
lottery procedures generally, definitions of Priority Groups (99) ; RSNs placed 
on various forms (00-5) ; Board 100 registrants (73) ; Class 1 registrants 
generally (74) (90) (99) (120) ; 1-0 registrants particularly (00-51); Doctors 
and allied specialists (77) ; Unsatisfactory Reservists (63) : Miscellaneous 
priorities for physicals in 1971 (00-4) (00-17) (00-21) (PLASD) : Physicals 
upon registrant request (105) ; Physicals for those ending deferments (120) ; 
Suspense file kept for expiring classifications (124) ; Reconsidering/reopening 
for lottery exposure (99) ; Processing by RSN order not prejudicial to Priority 
Group assignment — Attachment to LBM (55) ; Priority in appeals (114) ; 
Late information from school affecting placement in Extended Priority (00- 
48) ; Notification of Extended Prioritv status (00-50) ; Uniform National Call 
starting 1/1/72 (00-42) (PLASD) : 30-day notice of induction (PLASD) ; 30- 
day notice of work order (Oct. TASD) 



129 

DELINQUENTS 

Delinquency punitive processing ended (101) ; Local board and AFEES pro- 
cedures (14) ; Fictitious registrant (57) ; Registrant with Board 100 (73) ; 
When is l-O delinquent (04) ; Reordering physical after refusal to report/ 
submit following Gutknecht v. U.S. (106) ; Destruction of SSS cards (85) 

VOLUNTEERS 

Identified on Delivery/Transfer lists (00-5) ; With medical defects (89) ; 
Enlistment before induction (93) (00-14) ; Reservists (79) ; Induction at dis- 
tant AFEES (110) ; Volunteer for civilian work (64) 

DOCTORS AND ALLIED SPECIALISTS ("SPECIAL REGISTRANTS") 

When exempt from registration (70) ; Extension of liability (3S) (67) ; Gen- 
eral processing procedures (77) ; Priority in processing (77) ; Miscellaneous 
reports on progress in meeting Special Call No. 46 [1971-72 Doctors' draft] 
(00-S) (00-19) (00-20) (00-22) (00-23) (00-31) (00-35) (PLASD) ; General limit 
on inductions pending Department of Defense needs (91) ; National Security 
Council advice, community essentiality by Feb. 25, 1971 (00-23) ; Conscientious 
Objectors (77); Class 1-C (77) (90) ; Class 1-D (90); Class 2-A (77) (90) 
(00-23) ; Class 4-A (77) ; Class 4-F (38) (77) ; Overage (77) ; Public Health 
Service (38) (70) (90) (00-8) : Perry Plan [military residency] (77) ; Pharmacy 
interns (44) ; Professional students (112) ; Separate file maintained (77) ; In- 
duction over 26 (07 ) 

REGISTRANTS' PROCEDURAL RIGHTS 

Transfer to another board from local board 100 (73) ; Timely filing refers 
to postmark (72) : Personal appearance, generally (52) ; Tape recorders pro- 
hibited at appearance (00-43); Advisors to Registrants (00-10) (GC-5) (GC- 
10) ; Government Appeal Agents phased out (00-45) ; Medical interview (78) 
(113 1 ; Medical appeal (121) ; State Director appeal (68) : Priority in appeals 
(114) ; Processing by RSN order not prejudicial to Priority Group assignment 
— Attachment to LBM (55) ; Reconsidering/ reopening for lottery exposure 
(99) : Reopening criteria (111) ; Procedures following PL 92-129 passage (00- 
34) (PLASD) (Nov. TASD). 

postponement/cancellation of physicals/orders to report 

As affects Priority Group assignment (99) : Identified on Delivery/Transfer 
lists (00-5); At distant AFEES generally (116) (00-32) ; Conscientious Ob- 
jectors (64) ; Students (64) (112) (PLASD) ; Review for revised mental stand- 
ards of 1/1/72 (00-52 i ; Pending exams for license (44) ; Hard-to-replace em- 
ployees (Ojis. Bull. 338) ; Peace Corps (105) ; Public Health Service CORD 
Program participant (00-8) : Doctors' draft [Special Call No. 46] for 1971-72 
(00-20) (00-21) (00-23) (00-32) ; Medical personnel pending Department of De- 
fense needs, normally (91) ; ROTC Summer Camp (104) : After 6 years in the 
military (66) ; Religious observance of holidays (2) ; Following PL 92-129 
passage (PLASD) 

records of selective service 

Registrant Information Bank (RIB) reports on Form 112-A (00-16) (00-18) ; 
National Uniform Filing System (124) ; List of registrants — availability of 
records (71) ; Access and copying (97) ; Access to recruiters (93) ; Medical 
report of enlistees (93) ; Standbv Reserve forms (80) ; Records of World W T ars 
I and II (61) 

OTHER MISCELLANEOUS 

Date stamp on correspondence received (123) : Executive Secretary's term 
and appointment (119) ; Recruitment of board members (00-10) (00-12) (00- 
41) (00-45) (LASD GC-1)(LASD GC-2) ; Personnel authorized to issue induc- 
tion orders (00-24) ; Instructions to inductees (30) ; Army preinduction in- 
formation (00-3S) : General Counsel check list for prosecution (GC-1) (GC-7) ; 
Organization of General Counsel's office (GC-3) : Regional Attorneys prose- 
cuting l-O, 1-W offenders (GC-6) ; Regional Attorney locations in United 
States (GC-3) : Procedures with court cases involving Selective Service Sys- 
tem, generally (103) 



130 

This index was compiled in January. 1072. Changes are frequent. Many of 
the above items will be included in a new "Registrant Processing Manual" 
being prepared by the Selective Service System, to he sold through the United 
States Government Printing Office at such time as the new "R P M" is com- 
pleted. 

Addendum 

Unpublished Policy Directive on Men Classified 1-Y and Men with Armed 
Forces Physical Reexamination Believed Justified (Rl'.T) 

On November 24, 1971, a verified copy of a Telegram to All State Directors 
was received at the various State Headquarters. The full text of that Tele- 
gram has not yet been made available (although sent as "unclassified"), and 
does not appear in the Selective Service Law Reporter. ALL OTHER ITEMS 
IN THIS SSS DIRECTIVES INDEX ARE IN SSLR, PAGES 2157 ff. This 
Telegram is not cited in the Index. 

A portion of the Telegram is reprinted below. The Section in brackets which 
then follows is the continuation of that text, as paraphrased or extrapolated 
from Several State Headquarters' Memoranda. In several, if not all, States 
an explanatory letter is sent to registrants explaining this policy. 
FM C W Tarr Director Selective Service System Headquarters Washington D.C. 

Unclas it is expected that the new regulations will become effective on 
December 10. 1971. 

Registrants examined and found unacceptable (with reexamination believed 
Justified) at Armed Forces physical examination prior to that date shall be 
classified in Class 1-Y if classification action is taken by December 10, 1971. 
If the local board meets to classify any such registrant after December 10, 
1971, bis classification shall he reopened and he shall be placed in class 1-A. 

Registrants examined and found unacceptable with no reexamination recom- 
mended shall be set aside until after the effective date of the new regulations 
at which time they shall be considered for classification in Class 4-F. 

[For those examined after December 10. 1971. whose reexamination is be- 
lieved justified. Classification of 1-A shall be retained until such persons are 
returned for reexamination. After that "final determination", if a registrant 
is at that time found acceptable, he may be processed for induction when his 
Random Sequence Number is reached and after the prober notice is given. 

If a registrant is again found unacceptable for induction, he will be placed 
in Class 4-F by the local board at its next meeting regardless of whether or 
not the AFEES states that a reexamination is believed justified.] 



Attachment K 

September 3, 1970. 
To: All State Directors. 
Subject : Re-examination of Registrants. 

Increasingly larsre numbers of registrants who have been found not accent- 
able on preinduetion examination are being returned to Armed Forces Examin- 
ing and Fnti*ance Stations (AFEES) on the basis of recommendations by 
AFEES. An uneconomical percent of the re-examinees is found acceptable. 

Registrants who have been found unacceptable by AFEES with "re-exami- 
nation believed justified" on DD Form 02 (Notice of Acceptability) ship he 
considered for reclassification in Cass T-Y immediately after receint of DD 
Form 02. The recommended time interval before re-examination specified by 
AFEES shall have no influence upon consideration of such registrants for 
classification in Class T-Y. 

State Directors shall determine when, if ever, to return any resristrant for 
re-examination based on operational considerations: i.e., availability of funds, 
probability of acceptance, and workload of the local board. 

In any event, a registrant may be returned for re-examination no more than 
one time. Any registrant who has been returned for re-examination and has 
again been found unacceptable, shall be continued in Class I-Y, or if in Class 
I-A at the time of re-examination, shall he reclassified to Class I-Y, or such 
lower classification for which he may qualify. 
For the Director. 

Dee Ingold, 
Acting Assistant Deputy Director, Operations. 



131 

STATEMENT OF JOSEPH TUCHINSKY, MIDWEST COMMITTEE 

FOR DEAFT COUNSELING 

Mr. TrcinxsKY. My interest in the workings of the Selective Serv- 
ice System and my qualifications to offer information to you today 
are evidenced by the fact that I have been a registrant with that 
System since 1955 

Senator Kennedy. I have the statement here. I would like you 
to summarize it. 

Mr. Tuchinsky. Let me recap it then and ask that it be included 
in the record. 

I Avant to list then under two headings some of the most serious 
abuses which seem to be occurring in the System at this time. First, 
under the heading of conflicts with statutory and other authority, 
the regulations enacted and proposed by the System seem to have 
the effect of emasculating a number of reforms enacted by the Con- 
gress in the last session. 

In my prepared statement I list a number of them. I am addi- 
tionally concerned about what Dr. Tarr told us this morning: that 
advisers to registrants Avill now council men and solicit their con- 
fidences, and then go onto local boards to judge these same cases and 
influence the other members. This seems to me to create a worse con- 
flict of interest than the Government appeal agents ever did. 

I am also concerned that State directives seem to be unsupervised 
by the national headquarters, that in some cases there seems to be 
56 State and territorial fiefdoms in the Selective Service System. 
We find such abuses as the case of an Ohio directive which says 
that one must give up his conscientious objective claim or lose the 
right to give up a draft deferment and be exposed to a draft lottery 
in a year in which his number is not reached. 

AVe find that there are directives coming from National Selective 
Service totally lacking in statutory authority. A conspicuous example 
is a national directive forbidding men to bring tape recorders into 
their hearings even though they must later write an accurate sum- 
ma iy of those hearings for the record if they presented new infor- 
mation. 

I am concerned also. Mr. Chairman, about abuses that have oc- 
curred during the transitional period beginning before the new sta- 
tute was enacted and continuing to the present time. The on-again- 
off- again appeal process has had the net effect of causing a number 
of men to lose the right to personal appearances before the board 
which Congress provided, in those instances where cases were pend- 
ing at the time the act was signed. 

Second, the failure to send questionnaires out to registrants, to 
determine which men were eligible for exemptions as aliens and 
surviving sons, exemptions newly created by the Congress in the 
1971 statute. Those men were never notified of their right and were 
never offered the opportunity to present new evidence. Inductions 
were resumed in November, and it is entirely likely that some of 
those men legally exemptable may have been illegally inducted in 
November and December. And since the questionnaires still have 
yet to go out, when inductions are next resumed, those men may still 



132 

be ignorant of their right and be drafted without ever having the 
opportunity to file a claim. 

What I think this adds up to, Mr. Chairman, is that the rights 
of registrants can only be harmed by this policy. It does not even 
serve the narrow interests of the selective service bureaucracy. Many 
young men, especially those less educated, may illegally be inducted 
by their draft boards, but many others may challenge these policies 
and the Selective Service System may continue for a long time, as 
last fall, to be tied down by litigation and court injunctions in 
many parts of the country, if it continues to enforce policies con- 
temptuous of the law and basic fairness. 

I do not place great hope in draft law reform. I oppose any mili- 
tary draft as a violation of American ideals of personal freedom, an 
anachronistic survival of slavery in which young men are forced to 
work at low wages under pain of imprisonment or exile an infusion 
of dangerous militarism, and a grant of power to the military estab- 
lishment which it has proven itself in recent years unqualified to 
process. However, while there is a draft law on the books and a 
Selective Service to administer it, I believe that every procedural 
right and every freedom of choice which the statute or constitutional 
due process create for registrants must be protected from encroach- 
ment due to bureaucratic power hunger or laziness disguised as 
efficiency, either of which will gladly substitute arbitrary fiats for 
freedom of choice. 

My claims are explained in detail in the written statement I have 
submitted for the record and confirmed by exhibits attached to that 
statement. 

I would be glad to try to respond to any questions. 

Mr. Chairman, members, and staff of the subcommittee, my inter- 
est in the workings of the Selective Service System and my qualifica- 
tions to offer information to you today are evidenced by the facts 
that I have been a registrant witli that System since 1955, an active 
draft counselor since 1962, the coauthor, with Arlo Tatum, of the 
successive editions since 1968 of Guide to the Draft, the most widely 
read general handbook on the workings of the draft law, and also 
since 1968 the founder and a full-time staff member of the Midwest 
Committee for Draft Counseling, one of four offices of CCCO, the 
largest and one of the most respected national agencies helping to 
make available accurate information and reliable, honest counseling 
to those affected by the draft. 

In the written statement I have submitted to the subcommittee I 
have offered details of a number of instances of recent official abuses 
by the Selective Service System. I have confined myself to two re- 
lated types of abuses — first, instances in which regulations and other 
directives issued by the Selective Service System in recent months 
violate the letter or intent of the act passed by Congress, or assert 
powers not created by that act or any other; and second, actions 
of the Selective Service System during the transitional period be- 
fore and after passage of the 1971 act which had the effect of deny- 
ing registrants the rights which Congress, or the System's own exist- 
ing regulations, conferred. 

Let me merely summarize these now. 



133 

Under the heading of conflicts with statutory and other authorh 
first, regulations enacted and proposed by the Selective Service S}^ 
tern have the effect of emasculating the statutory reforms aimed V g 
providing fair hearings for the young men registered with th> 
System. By reducing the period to apply for an appeal from 30 o?, 
60 days down to 15, and by limiting hearings to 15 minutes includ 1 
ing the time for testimony by up to three witnesses, these hearings 
may become unavailable or meaningless to many men. The statutory 
requirement that reasons be provided if men's claims are denied is 
evaded with reasons which are mere conclusions, not facts related to 
individual cases, and the System has sanctioned use of checklists 
and boilerplate forms in lieu of meaningful reasons. I am concerned 
that Dr. Tarr told us this morning that advisers to registrants will 
counsel with young men, solicit their confidence, then go onto local 
boards to judge these same cases and influence the other members; 
this creates a worse conflict of interests than the Government ap- 
peal agent ever did. 

Second, unpublished Selective Service directives undercut what- 
ever fairness is in the official regulations, as in the case of a com- 
plex and important registration questionnaire which the regulations 
say should be mailed to the man to be returned within 10 days, but a 
registrants processing manual and State directives say it must be 
filled out on the spot with no one but the local board clerk as a 
legal advisor. 

Third, State directives often deny rights created by national poli- 
cies, as in the case of an Ohio directive which says one must give 
up his conscientious objector claim or lose the right to drop a defer- 
ment and be exposed to the draft lottery in a year in which one's 
number is not reached. 

Fourth, there are directives totally lacking statutory authority, 
as in the case of a national directive forbidding men to bring tape 
recorders into their hearings, though they must later write accurate 
summaries of these hearings. 

And under the heading of abuses during the transitional period : 
first, the on-again-off-again appeals process from September to the 
present has had the net effect of denying personal hearings before 
appeal boards to many men whose cases were pending when Con- 
gress passed and the President signed the 1971 law. 

Second, the System was in such a hurry to deny student defer- 
ments to college freshmen that it acted over 3 months before the 
law and regulation were in effect allowing the denial, and enlisted 
college registrars in its illegal action. 

Third, aliens and surviving sons newly exempted by the 1971 act 
were never notified of the new law or asked to provide evidence of 
their eligibility for exemption, and so are still unaware of their new 
rights. As a result, some may well have been illegally inducted in 
November and December, or may be when inductions are next re- 
sumed. 

Fourth, though the law went into effect on September 28, 1971, 
there are indications that the System ignored its requirement that 
reasons be provided on request to men whose claims are denied, at 
least until its regulations began to go into effect on December 10. 



134 

Evidently State and local personnel feel no obligation to obey the 
law, but only the instructions they get from National Selective Serv- 
ice headquarters. 

And fifth, the recent release from military obligation of thousands 
of men under postponed induction orders or extended liability to in- 
duction, while fair and even generous to these men, seems based on 
ad hoc policies without basis in any statute or regulation. Any 
younger men drafted later in 1972 may justly complain that they 
are taking the places of those allowed to go free. 

What it adds up to is an end-run around Congress. The rights and 
interests of registrants can only be harmed by this policy, and the 
hope for greater fairness as a result of the 1971 amendments is 
being dashed. This policy does not even serve the narrow interests 
of the Selective Service bureaucracy, for while many young men, 
especially those less educated and less advantaged, may obey even 
illegal orders from their draft boards, many others will challenge 
these policies, and the Selective Service System may continue for 
a long time, as it was last fall, to be tied down by litigation and 
court injunctions in many parts of the country, if it continues to 
enforce policies contemptuous of the law and basic fairness. 

I do not place great hope in draft law reform. I oppose any mili- 
tary draft, and will continue to speak against conscription as a 
violation of American ideals of personal freedom, an anachronistic 
survival of slavery in which young men are forced to do work they 
don't choose at low wages under pain of imprisonment or exile, an 
infusion of dangerous militarism, and a grant of power to the mili- 
tary establishment which it has proven itself in recent years un- 
qualified to possess. However, while there is a draft law on the books 
and a Selective Service System to administer it, I believe that every 
procedural right and every freedom of choice which the statute or 
constitutional due process create for registrants must be protected 
from encroachment due to bureaucratic power-hunger or laziness 
disguised as efficiency, either of which will gladly substitute arbitrary 
fiat for freedom of choice. 

I imagine some members of the Senate hoped, when they voted to 
confirm the appointment of Dr. Curtis W. Tarr as Director of Se- 
lective Service nearly 2 years ago, that the worst abuses of General 
Hershey — the arbitrariness, the sudden, unpredictable, and illogical 
changes in policy, the indifference to most public or congressional or 
judicial opinion — would be replaced by a fairer, more responsive 
and open, more sensitive Selective Service administration. Last fall's 
and this winter's experience makes clear that this is not to be. The 
Selective Service System remains essentially lawless. 

I understand from the January 30 Chicago Sun-Times that after 
Dr. Tarr finishes making the Selective Service System a model of 
fairness and efficiency, he is slated for appointment to the State De- 
partment as Undersecretary for Security Affairs to administer the 
Foreign Assistance Act, and I guess the Senate will know a little 
more about his talents when he comes before you for confirmation 
next time. 

(The prepared statement of Joseph Tuchinsky follows:) 



135 

Statement of Joseph S. Tuchinsky 

In this written statement I wish to offer a few examples which suggest the 
extent and variety of abuses committed in recent months by the Selective 
Service System. I shall limit myself to instances of recent regulatory direc- 
tives which conflict with the letter or intent of the Act or existing regulations, 
or exercise authority no statute gives to the Selective Service System, and 
to instances of temporary policies followed during the transitional period 
beginning while the 1971 Act was pending which violated the intent or letter 
of the statute or existing regulations. Even with this limited scope, my exam- 
ples are very far from exhaustive. I have chosen examples which seem to me 
illustrative of the philosophy, policies, or endemic practices of the Selective 
Service System. 

I. REGULATORY MATERIAL IN CONFLICT WITH THE INTENT OF CONGRESS OR NOT 

AUTHORIZED BY STATUTE 

1. The 1971 amendments to the Military Selective Service Act added Sec- 
tion 22, reading as follows : 

Sec. 22. (a) It is hereby declared to be the purpose of this section to guar- 
antee to each registrant asserting a claim before a local or appeal board a 
fair hearing consistent with the informal and expeditious processing which 
is required by selective service cases. 

(b) Pursuant to such rules and regulations as the President may prescribe — 

(1) Each registrant shall be afforded the opportunity to api»ear in person 
before the local or any appeal board of the Selective Service System to testify 
and present evidence regarding his status. 

(2) Subject to reasonable limitations on the number of witnesses and the 
total time allotted to each registrant, each registrant shall have the right to 
present witnesses on his behalf before the local board. 

(3) A quorum of any local board or appeal board shall be present during 
the registrant's personal appearance. 

(4) In the event of a decision adverse to the claim of a registrant, the 
local or appeal board making such decision shall, upon request, furnish to 
such registrant a brief written statement of the reasons for its decision. 

These provisions can be viewed as a beginning toward a Registrant's Bill 
of Rights — or might be if meaningfully implemented. However, the evident 
intention of these provisions is now being quite effectively undermined by 
regulations issued by the Selective Service System. In many cases these regu- 
lations are neither prepublished 30 days in advance of effectiveness (as the 
1971 Act amended Section 13(b) to require) nor published by the government 
at all. The new regulations and directives, followed religiously by local and 
state personnel of the Selective Service System, are making a mockery of the 
intent of Congress. 

Section 22 of the Act contemplated a fair hearing at each level of Selective 
Service processing, with the right to offer witnesses at the local level. The 
first recommendation of the 1967 Presidential Commission headed by Burke 
Marshall to be acted upon was to expand the 10-day period then allowed for 
requesting hearings and appeals to 30 days following the local board's mailing 
of a man's Notice of Classification. Perhaps this change recognized the real- 
ities of a mobile society, a less-than-perfect postal system, and the existence 
of young men who may sometimes experience other problems in their lives 
which distract them from dealing with a new draft classification for a few 
days. And perhaps it honored the need of the registrant for time to consult 
with parents, ministers, counselors, or a lawyer before taking: or waiving ac- 
tions with potentially far-reaching implications. Even before 1967, men travel- 
ing outside North America and the U.S. territories were allowed 60 days to 
appeal, perhaps recognizing the realities of international postal service. Now, 
soon after Congress enacted its guarantee of a fair hearing, the Selective 
Service System has reduced the time for requesting a Presidential appeal to 
15 days, and has published but not yet enacted regulations similarly reducing 
the time for requesting a local or state hearing. We have come nearly full 
circle. And this time limit applies to all registrants, even the Peace Corps- 
man serving in East Africa. There is an elastic clause allowing a local board 
to accept a man's request filed after the 15 days "if it is satisfied that his 
failure to appeal within such period was due to some cause beyond his con- 



136 

trol" (Regulations 1624.2, 1626.2, 1627.1(b). as prepublished in the Federal 
Register on January 12, 1972). Thus discretionary privilege, to be granted or 
denied at whim, replaces the legal right to a reasonable period of time to re- 
quest one's rights. Is it unreasonable to wonder if the motives for the change 
included a desire to reduce the number of men using their new rights to a 
"fair hearing"? Is it unreasonable to observe that it is especially the poor 
and ill-educated who are likely to have difficulty maintaining an address at 
which mail will reach them promptly, and therefore lose their appeal rights? 

Even the man who meets the deadlines is likely to find his new rights less 
than satisfying. Congress guaranteed the right to present witnesses at a hear- 
ing before the local board, "subject to reasonable limitations on the number 
of witnesses and the total time allotted to each registrant." The proposed 
regulations consider "reasonable" a time limit of "normally 15 minutes," 
which is expandable at the board's discretion. The more rigid board is thus 
free to schedule hearings at 15-minute intervals, allowing a man trying to 
present all the facts of his family hardship situation, or good evidence of the 
sincerity of his conscientious objection, to present three witnesses, each of 
whom might speak for four minutes, leaving the registrant three minutes to 
state his own case — if the board members' questions, hopefully relevant ones, 
haven't used them up. Then the man is dismissed from the room so the board 
can make a hasty decision and move to the next hearing. Our experience tells 
us that some draft boards will be far more flexible than this, and that many 
others will behave in precisely this manner. Many registrants, forewarned of 
this possibility, will elect not to use the right to present witnesses, to insure 
some opportunty to state their own case before time is called. Even without 
witnesses, the 15-mimite hearing before the National Appeal Board (Regula- 
tion 1627.4(d)) would be inadequate for nearly any serious claim, and many 
men would despair of the worth of undertaking what might be a long and 
exi>ensive trip with no guarantee that he will get more of a hearing than that. 
Thus do the new regulations leave draft boards free to deprive men of the 
rights that Congress created. 

The absolute regulatory prohibition on more than three witnesses seems 
improper for similar reasons. In most cases three would be adequate. But in 
the exceptional case the regulation leaves the board without freedom to judge 
for itself what are "reasonable limitations on the number of witnesses." Con- 
sider the man applying for an extreme-hardship deferment. At his personal 
appearance before the local board, he would almost certainly wish to present 
his dependents, perhaps more than one person : his family doctor if the med- 
ical disability of a dependent were at issue, which is often the case; his case- 
worker if the family were receiving welfare or agency aid; and perhaps his 
employer, a clergyman, or one or more neighbors who could testify to the 
home situation and his contributions to its needs. It must be remembered that 
Selective Service has given the registrant the burden of proving his eligibility 
for any classification other than 1-A. although Selective Service has con- 
sistently forgotten to notify registrants of this burden. To complicate the 
situation still further, the Selective Service System requires all men to make 
all their claims at the same time and normally allows them only one hearing 
or appeal on all of them together. So if the hardship-deferment claimant were 
also a conscientious objector, it would be vital that he also present several 
witnesses who can testify to his sincerity and his religions beliefs. What would 
be a "reasonable limitation" in one situation could be quite unreasonable in 
another. 

Congress in Section 22 also required that boards provide reasons when they 
deny men's claims. We have quite a bit of experience with the reasons boards 
provide, since the great majority of Federal courts were insisting on this 
requirement even before Congress put it into the statute. In a recent case, 
a New York State local board had turned down a conscientious objector claim 
with an irrelevant and verbatim quotation from Dr. Tarr's infamous Local 
Board Memorandum 107 on the standards to be applied in conscientious ob- 
jector claims, followed by the single word "expediency." It didn't cite a single 
fact from the man's file or make any reference to the hearing it had just held 
with him. And the appeal board, in Illinois where the young man was then 
working, was even more cryptic; it turned his claim down and stated its 
"reasons" by checking several items on a list provided by Illinois state head- 
quarters. Since neither board recited any facts, there was no way th» reg- 



137 

istrant could rebut the conclusion they reached. We recently filed an amicus 
curiae brief before the Seventh Circuit Court of Appeals in this case, pro- 
testing this kind of treatment of registrants. 

This case arose before the amendment Congress enacted last fall, but we 
expect similar abuses until the Selective Service System explains to local and 
appeal boards the difference between reasons and mere conclusions. As illustra- 
tions of how widespread this misunderstanding is, and how grievous the abuse 
will be for the registrant, I have reproduced in Exhibit A the most recent 
Illinois memorandum on the subject, and in Exhibit B a form sent this month 
l»y a Pennsylvania local board to one of its registrants. National Selective 
Service Headquarters has given its state and local personnel no guidance 
whatever in giving meaningful, factual reasons to registrants. Indeed, it had 
under consideration for a time — and may still — a 14-page draft of a Local 
Board Memorandum which goes further toward creating false standards and 
encouraging boilerplate reasons than these Illinois and Pennsylvania publica- 
tions do. I have appended this draft as it was reprinted in CCCO's Draft 
Counselor's Newsletter, containing the full text in a condensed typographical 
format (Exhibit C). This draft seems to have had wide circulation within the 
Selective Service System, and may well have spawned a number of the more 
repressive state directives on the subject even though it was never officially 
issued itself. 

These abuses threaten the implementation of the reforms Congress enacted 
in Section 22 of the Act even before the Selective Service System has put all 
its regulations into effect or fully resumed normal procedures. 

2. In addition to the watering down of Section 22 rights Selective Service 
is now in the process of undercutting its own regulations. The most conspicu- 
ous example arises in registration procedures. The newly promulgated (but 
unpublished) "Registration Questionnaire," SSS Form 100, put into use late 
in January at some local boards, replaces a "Classification Questionnaire" 
with the same number. Regulation 1621.10, as it is now in effect, provides that 
this form is mailed to the registrant, who must return it within 10 days after 
the mailing date. That's little enough time for an 18-year-old to gather in- 
formation and make decisions about the alternative classifications for which 
he can intiate claims on this form, and little enough time to talk with his 
family, a draft counselor or lawyer, his minister, or others who may help him 
with difficult decisions. The proposed revision of Regulation 1621.10. pre- 
published January 12. 1972. but not yet in effect, changes the language to 
refer to the Registration rather than the Classification Questionnaire, but it 
leaves intact the mailing requirement and the 10-day deadline for return. But 
the so-called Regulations are only for show. The clerks in the Selective Serv- 
ice System, at the operative level, pay no attention to them. They operate by 
a new set of directives called the Registrants Processing Manual, supplemented 
by the directives they get from their state headquarters. And if you look at 
Section 613.1, paragraphs 6 and 7, of the Registrants Processing Manual, is- 
sued January 14, 1972 (but not officially published or prepublished). you 
iliscover that the registrant doesn't get the 10 days: "Upon the establishment 
of his eligibility to register, the registrar will issue the Registration Question- 
naire (SSS Form 100) to the registrant and provide instructions in its prepa- 
ration. The registrar will provide such assistance as is required in order for 
the registrant to complete the Registration Questionnaire . . . After prepara- 
tion and signing by the registrant, the registrar shall review the Registration 
Questionnaire (SSS Form 100) for completeness, accuracy of descriptive in- 
formation provided, and verification of the registrant's signature as entered. 
The registrant must sign the completed Registration Questionnaire in the pres- 
ence of the registrar. . . ." When I first read that, I didn't think it meant the 
form would be mailed out to be returned within 10 days, and so I wrote to 
Dr. Tarr not only to protest that the Registrants Processing Manual had not 
been placed in the Federal Register but that these instructions seemed to 
require the registrant to fill out the form on the spot, deprived of the oppor- 
tunity to reflect on the questions or seek independent advice. My letter and 
the reply from Selective Service General Counsel Walter H. Morse are ap- 
pended (Exhibits D and E). Evidently Mr. Morse feels I had misunderstood 
the RPM language, which he says does not require but merely permits men 
to fill out the form on the spot. But I am not the only one guilty of this mis- 
understanding. Here is a section from Clerical Procedure No. 4-A, issued by 



138 

Illinois state headquarters on February 18, 1972, to boards in its state: "Upon 
the establishment of his eligibility to register, the registrar will issue the 
Registration Questionnaire (SSS Form 100) to the registrant and provide in- 
structions in its preparation. ... A registration is not complete and should 
not be certified by a registrar until all items on the Questionnaire are com- 
pleted. Under no circumstances will a registrant be permitted to take a 
Questionnaire out of the registrar's office for the purpose of obtaining in- 
formation and completing the form. If the registrant does not have the re- 
quired information, he must obtain it and return in order that he may be 
registered" (Exhibit F). In Chicago, ghetto residents can be seen daily at 
the draft board office on Pershing Road filling out the complex Form 100 on 
the spot, without ever being informed that they have a right to ten days to 
obtain impartial advice and necessary information before completing that vital 
questionnaire which they had no way of knowing they would be required to 
execute when they arrived at the board to register. I have been told of sim- 
ilar practices in Michigan and. Maryland, and am sure they are far more 
widespread. Even though they have been rewritten to limit registrant's rights, 
the published regulations are relatively liberal compared with the unpublished 
directives which contain the Selective Service System's real regulations. 

3. Not only do some state directives spell out the reality of national policies, 
us in the Illinois directive quoted above, but some go even further than national 
policies in limiting and harming registrants. Earlier this month I had some 
correspondence with "Jim," a college student from a city in Ohio. Because he 
had a relatively high lottery number, in December 1971 he sought to give up 
his 2-S deferment to complete his exposure in the draft in 1971, when his 
number was not needed to fill calls. This right, used by thousands of men in 
late 1971, is allowed by Part IV of Local Board Memorandum 99, which pro- 
vides : "The local board shall also promptly consider for reclassification any 
registrant who requests in writing that his current deferment be ended and 
who is currently classified in one of the following classes: Class 1-S, Class 
2-A, Class 2-C, Class 2-D. Class 2-S, or Class 3-A." Jim had previously ap- 
plied as a conscientious objector, and of course did not intend to give up his 
beliefs as he ended his college deferment, so he concluded his letter, "In lieu 
of II-S, I request I-O" (the service classification from which men are drafted 
to perform civilian alternate service). The local board clerk wrote back that 
Jim could give up his 2-S only if he would accept a 1-A classification, imply- 
ing withdrawal of his CO claim, and she cited "onr administrative Memoran- 
dum No. 53" as her authority. Jim copied the directive in question at the 
local board office and sent it to me. Over the signature of the Ohio State 
Director Thomas S. Farrell, Administrative Memorandum No. 53 (1971), dated 
December 10, 1971, adds a provision not in LBM 99 in providing that "any 
registrant classified 1-S, 2-A, 2-C, 2-D, 2-S, or 3-A may request his defer- 
ment be dropped in favor of 1-A . . ." (emphasis added). Thus do Selective 
Service State Headquarters often exceed or contradict the provisions of na- 
tional Selective Service directives, and it is evident that national headquarters 
exercises little or no control over the voluminous quantities of written direc- 
tives sent to local boards by state headquarters. The policy differences are 
sometimes great enough that one can regard the Selective Service System as 
a federation of 56 state and territorial fiefdoms. This was even more true 
under General Hershey, but if. remains substantially true under Dr. Tarr. 

4. Even when national directives are followed, it is not always certain that 
they are based on any power legally exercised by the Selective Service System. 
I have reproduced in the addendum to this statement a Letter to All State 
Directors (OO^t3), issued by the Director of Selective Service on October 
26, 1971, but never published (Exhibit G). It forbids registrants to use tape 
recorders at their hearings on the ground that their use is "not authorized 
by the selective service law or regulations." I note that breathing and the 
wearing of clothing are not aTithorized by Selective Service law or regulations 
either, but no one has suggested that these acts be banned on that ground. I 
wrote to the General Counsel of Selective Service to ask what statutory au- 
thority he had to issue rules on use of tape recorders and to point out that 
they might serve some registrants effectively in fulfilling their legal obligation 
subsequently to summarize in writing any new information they presented 
orally at a hearing (Exhibit H). Mr. Morse replied rather unconvincingly on 
the second point, but ignored the first question completely (Exhibit I). Evi- 



139 

dently the Selective Service System believes it can issue arbitrary directives 
in any area where Congress hasn't expressly forbidden it to do so, or deny 
any right not specifically guaranteed in the law, however reasonable or harm- 
less. 

II. VIOLATIONS OF THE INTENT OF CONGRESS OR OF EXISTING REGULATIONS DURING 
THE TRANSITIONAL PERIOD SURROUNDING PASSAGE OF THE 1971 ACT 

1. There has been little information and much confusion among draft reg- 
istrants concerning new statutory procedural rights enacted on September 28, 
1971, and clearly great confusion also within the Selective Service System. 
On Se»tetsber 3. 1971. before the law went into effect. Dr. Tarr issued Local 
Board Memorandum 55, instructing local boards to notify registrants who had 
procedural rights pending that their cases might be delayed while more eligible 
men were considered first, and directing the boards to continue processing 
men in roughly the order of their eligibility for induction. On October 1, he 
sent a "personal letter'' to each State Director (released and published at 
Selective Service Law Reporter page 2200:86), paragraph 7 of which di- 
rected : "No classification action shall be taken by any local board or appeal 
board, and no personal appearances shall be held, until new regulations are 
issued." 

Then on November 2. though new regulations weren't yet issued, and wouldn't 
go into effect until December 10, he sent a telegram — not an Executive Order, 
not a published directive, but a telegram — to the State Directors ordering: 
"Classification actions by local boards shall be resumed immediately. ... No 
personal appearances shall be held until the new regulations become effec- 
tive. . . . Appeal boards shall resume classification actions in anv cases where 
the registrant's appeal period expired prior to September 28, 1971. but shall 
deny action in any cases where the registrant's appeal period expired on or 
after September 2S, 1971." In Illinois, the state headquarters issued a Special 
Memorandum to All Local Boards that very day transmitting Dr. Tarr's orders. 
And there, to the best of our knowledge, it stands now. Registrants, except 
those who got the form letter about delays based on order of eligibility, have 
no idea what is happening with the procedures they requested and are en- 
titled to. Dr. Tarr has forgotten public statements he made last fall about 
stopping all processing so registrants with cases pending would have the 
benefits of the new procedures Congress enacted. He has authorized state 
appeal boards to decide cases under the old regulations, without any right to 
personal hearings for men whose period for requesting their rights ended 
before the new law was finally signed by President Nixon, even though no 
action was taken in most of these cases until after the effective date of the 
1971 Act. Some states ignored this directive and have postponed these cases 
so the men may have the benefits of the new law when implemented by 
regulations, while in other states, including Illinois, we have reports of ap- 
peal boards acting on such cases and denying hearings. Thus, men whose files 
were not even forwarded to the State Appeal Board when the 1971 Act came 
into force have since had their cases decided — adversely— (without ever being 
offered the opportunity and right to appear personally before that board. 

2. Nor were those with pending appeals the only ones to suffer from transi- 
tion-period abuses. Also on September 3. Dr. Tarr sent a letter to the registrar 
of every college and university in the United States advising that no Student 
Certificate forms be submitted for freshmen, and asserting that this would be 
in the students" interest (despite the fact that the new law was not yet in 
effect, and that even a briefly held deferment yields at least a reopening and 
appeal rights when it ends, which could serve as a hedge against induction 
for many months to allow a student to finish a school year). Most registrars 
accepted Dr. Tarr's illegal advice, though some ignored it and filled out forms 
for freshmen as usual. 

To insure that freshmen wouldn't create extra work for the System by get- 
tins deferments they were entitled to and then having to be reclassified when 
the new regulations were put into effect, Dr. Tarr issued Local Board Memo- 
randum 122 on September 22, six days before the new law was signed. It 
instructed local boards "effective immediately" to set aside the file of any man 
who entered college in the summer of 1971 or later and who requested a 
student deferment, neither to issue him an induction order nor to give him 
the 2-S deferment which Regulation 1022.25, then in effect, made mandatory 



140 

even if the new law were signed. The Act, when signed on September 28, 
authorized, but didn't require, the denial of college deferments to freshmen, 
and a new regulation was only finally put into effect utilizing this power of 
denial on December 10. During the interim, hundreds of thousands of college 
freshmen, legally entitled to 2-S deferments from September to December, 
and to appeal rights in December when the deferments would have ended, had 
no rights whatever. The Selective Service System chose not to obey its own 
regulations. Undoubtedly, any of these young men who receive induction orders 
when inductions are next resumed who can show that they wouldn't have 
received them if their temporary deferments had been received will have a 
strong argument to make in court. 

3. Local Board Memorandum 122 also provided interim procedures for the 
men entitled to two new exemptions created by Congress in the 1971 Act. It 
instructed local boards to issue no induction orders to men whose Selective 
Service tiles indicate they are in the alien categories newly exempted from 
the draft or to men who claim eligibility for the new surviving son exemption. 
However, the System took no initiative whatever to inform its registrants 
that Congress was creating these new exemptions, to explain who might qual- 
ify for them or how to document the qualification, or to suggest that those 
who might be eligible should submit their claims. Nor were the files of these 
surviving sons and noncitizen registrants likely already to contain the in- 
formation establishing their eligibility for exemption. Inductions were re- 
sumed in November and December without providing for any but those well 
enough informed to file claims spontaneously, and to this day no question- 
naires have been sent to registrants inquiring about their eligibility for the 
newly created alien and surviving sons exemptions. There is no way to know 
how many men were drafted in November and December 1971 who were legally 
exempt under the 1971 Act but never knew it. 

4. When Congress added Section 22 to the Selective Service Act on September 
28, 1971, it provided : "In the event of a decision adverse to the claim of a 
registrant, the local or appeal board making such decision shall, upon re- 
quest, furnish to such registrant a brief written statement of the reasons 
for its decision." As is indicated above, the System has continued reclassifi- 
cations except from October 1 to November 2. Although this requirement is 
written into the effective and proposed regulations — in fact, commendably 
more generously than Congress required, for reasons are to be mailed to the 
registrant following local and state appeal board decisions without waiting 
for him to request them — -no national directives have come to light detailing 
methods of providing reasons when men's claims are decided. We have found 
a state directive, however, which we think contains a widely followed policy, 
perhaps a national one which has been communicated telephonically from 
National Headquarters. A January 28, 1972. "Special Memorandum to All 
Local Boards" from Dean S. Sweet, the State Director for Illinois, provides 
in part : 

2. You are reminded that when the new regulations, which were printed 
in the Federal Register on January 12, 1972, become effective on or about 
February 12, 1972. local boards must, when denying a request for a 
deferment, place the reason or reasons in the file and advise the reg- 
istrant by letter of the reason or reasons for denial at the time the SSS 
Form 110 is mailed. 

3. Registrants denied a requested deferment from December 10. 1971, 
until the new regulations become effective shall, upon request, be pro- 
vided by letter with the reason or reasons for denial. 

The latter paragraph is amazing. By directing boards to provide on re- 
quest the reasons for only those decisions made on or after December 10. 
1971, it indicates that the Selective Service System is obligated to obey on ] y 
the regulations and other directives it receives from its National Headquarters, 
not the statute passed by Congress and signed by the President on September 
28, 1971. 

5. Finally, the Selective Service System's handling of the several categories 
of men under the lottery system has been totally arbitrary, though in many 
cases arbitrary to the advantage of many registrants. During the past month, 
three categories of men whose status was uncertain previously have been 
effectively released from draft liability. Those who entered the First Priority 
Selection Group by the end of 1971 and whose lottery numbers were consid- 
ered to have been reached in that year without their being drafted became 



141 

eligible for an extra three months at the beginning of 1972 as members of 
the Extended Priority Selection Group, Subgroup B. Since the Defense De- 
partment decided to issue no calls for draftees in the first quarter, there is 
little question that these men in Subgroup B were entitled to pass to a safe 
category. However, the treatment of men who were under induction orders 
issued in 1971 and postponed, and those who were in exposed classifications 
at the end of 1970 and whose lottery numbers were reached in that year 
without their being drafted (designated Extended Priority Selection Group, 
Subgroup A), was totally arbitrary. The System has sought to justify the 
decision to release these men in terms of basic fairness, citing the length of 
periods during which they were held up in processing and the desirability of 
limiting their liability to 270 days or some other period. But the fact is that 
these decisions, though perhaps fair and certainly generous to these men, are 
totally arbitrary, based on no provision of the statute or officially published 
regulations, but governed by directives and communications issued on an ad 
hoc basis, one of the most arbitrary of which, a "private letter" sent by Dr. 
Tarr to each State Director on February 9, 1972, is reproduced as Exhibit J. 
I am glad of the good fortune of those who have been released from their 
long periods of uncertainty and risk, but I anticipate that younger men who 
are drafted later in 1972, if there are draft calls this year, will with con- 
siderable justification complain that they are being taken only because more 
eligible men were illegally let off at the beginning of the year. And again the 
System will be mired in controversy and litigation as it has been fairly con- 
tinuously since last fall because of its own failure to publish and adhere to a 
logical, clear, consistent set of official regulatory policies. 

Claims of Conscientious Objector 

Finding on sincerity. Federal Circuit Courts have held that where a reg- 
istrant states a prima facie CO. claim (a claim that on first view or before 
further examination appears good) a local or appeal board must make a spe- 
cific ruling finding insincerity and the reasons therefor, to legally reject such 
a claim. 

In passing on CO. claims. Illinois boards are specifically referred to recent 
LBM 107 where they will note that the primary test is that of "sincerity". 

The 7th Circuit Court of Appeals (includes Illinois) held that the question 
of CO. is a delicate problem and that "in conscientious objector cases, prima 
facie stated", the Court cannot determine the legality of the board's decision 
without the board's written finding that belief is not sincerely and deeply held 
and without some "basis in fact" for such a finding. Please note that the Court 
did not require reasons for decisions on any other type deferment classification 
other than the difficult question of conscientious objection. Bona fide CO.'s 
should be given Class 1-0 (whether the claim was filed before or after induc- 
tion notice), but where a board is not convinced of sincerity, it should make 
a written finding stating reasons. 

Following are examples of conclusions that may be used as guidelines to 
making determinations on requests for classification as a conscientious ob- 
jector. In addition to the conclusion or concisions which apply, it is most im- 
portant that the reasons for arriving at the conclusion are clearly stated if 
die board determines not to grant the requested 1-0 classification. The reasons 
must be based on evidence obtained by the board, either from the registrant's 
fi'e or from a personal interview. 

CONCLUSIONS 

1. Sincerity. 

2. Timeliness of claim. 

3. Attitude. 

4. Other people to substantiate claim. 

5. Lack of religious or ethnic training and/or belief. 
ft. Number and types of previous deferments. 

7. Age. 

8. Delinquency in any formal matters. 

9. Complete selective service file. 

10. Basis for belief. 

11. Opposition to this war or all wars. 

12. Opposition to selective killing or all killing. 

13. Overall demeanor. 

80-620—72 10 



142 

REASONS 

(o) Insincerity based on the fact that registrant used various other defer- 
ments and lastly resorted to a claim of conscientious objector in an obvious 
attempt to avoid military service. 

(b) Convictions not deeply held indicated by fact that registrant stated that 
he is a conscientious objector but did not support his claim with sufficient 
evidence or convincing evidence. 

(c) Lack of evidence of religious training and activity where a religious 
belief is claimed as a basis for conscientious objection. 

(d) Claim is frivolous and not supported by factual evidence. 

(e) The information presented by registrant in support of his claim for 
reclassification is not convincing of deeply held moral or religious convictions 
to conscientious objection of war in any form. 

(/) Claim is based on a particular war rather than on all wars. Registrant 
repeatedly states that he is against Vietnam war. 

{()) Registrant's statements refer to one war rather than war in general and 
are statements of political views. 

(ft) Any other reason that leads to doubt based on some fact that is evident. 

Sucft. reasons should be amplified as much as possible relating to specific in- 
formation contained in the registrant's file. 



Selective Service System, 
Pittsburgh, Pa., February 1, 1972. 



Pittsburgh, Pa. 

Dear Mr. : At the meeting of a quorum of your Local Board's Mem- 
bers on January 20, 1972, your claim for a Conscientious Objector status was 
considered by them. The encircled item(s) on the attached sheet indicates the 
factors relative to their reaching a decision in your individual case. 
Yours truly, 

Thomas H. Cameron, 
Assistant Executive Secretary, Local Board No. 4- 

Reasons for Denial of Conscientious Objector Status 

(1) Your stated beliefs were determined to be questionable, vague, in- 
sufficient or lacking in conviction to qualify for requested classification. 

(2) The evidence and/or information which you submitted in support of 
your claim was devoid of sincerity of belief and/or expressed a purely per- 
sonal moral code which would not necessarily entitle you to a Conscientious 
Objector status. 

(3) The evidence which you offered in support of your classification request 
was not substantial or of an insufficient nature. 

(4) You did not express a bona-fide belief or did not actually claim a 
Conscientious Objector status. 

(5) Your reasoning, logic, and/or commitment appear extremely doubtful 
despite well-documented, voluminous supporting statements relative to your 
claim for Conscientious Objector status. 

Possible Instructions Telling Draft Boards How to Deny CO Claims 

A draft of a proposed Local Board Memorandum, entitled "Statement of 
Reasons for Denying Classification as a Conscientious Objector." is now cir- 
culating within the Selective Service System. CCCO has obtained a copy, and 
we publish the entire text below. Note that this is not an effective LBM or 
even an official, published proposal ; it is someone's working draft. However, 
something like it may eventually be sent to draft boards. 

1. To insure a registrant due process of law in the consideration of his 
claim for classification in Class l-O or 1-A-O, it is imperative that local 
boards and appeal boards (including the National Selective Service Appeal 
Board) include in the registrant's file a statement of the reason (s) for deny- 
ing the requested classification. This Local Board Memorandum is intended 
to assist board members in analyzing claims for classification as a conscientious 
objector and in preparing the required statement. 

2. Processing of claims for classification as a conscientious objector starts 



143 

with receipt of Special Form for Conscientious Objector (SSS Form 150) or 
other written statements stating a claim for conscientious objector status. 
After recording in the minutes of action the receipt of such claim, the SSS 
Form 150 and other written claims for classification in Class l-O or 1-A-O 
should be analyzed. 

3. Types of decisions on claims for conscientious objector status are : 

(a) Grant claim for 1-0 or 1-A-O as requested because registrant presented 
prima facie claim which was supported by facts in cover sheet and presented 
at personal appearance ; 

(b) Deny the claim for 1-0 or 1-A-O which the registrant claimed because 
he did not present a prima facie claim for the classification. 

(c) Deny registrant's claim although he presented a prima facie claim for 
1-0 or 1-A-O. 

(d) Grant the registrant a 1-A-O classification even though he hid re- 
quested l-O classification. The registrant who requested classification in 
Class 1-0 should be classified in 1-A-O only when one of the following cir- 
cumstances exists: when it is clear from the information presented by the 
registrant that his opposition is only to ''bearing arms" and not to noneorn- 
batant service ; or when the registrant is not certain whether his conscientious 
objection extends to noncomhatant service. 

Under no circumstances is Class 1-A-O to be used when the local board 
cannot decide between Class 1-A and Class 1-0. A registrant who has claimed 
l-O should be considered for classification in Class 1-A-O before classifying 
him 1-A even if the registrant does not want to be 1-A-O. If the registrant 
is classified in Class 1-A-O specific evidence supporting this classification must 
be in the cover sheet and recorded in the minutes of action. 

4. A prima facie claim is a claim that, assuming the truth of the statements 
made in its support, would be a sufficient basis for a l-O classification. A 
prima facie claim should generally present factual allegations sufficient for 
the local board to be able to determine the depth, nature, and extent of his 
opposition to military service. The elements of prima facie claim may include 
the following: (a) registrant is conscientiously opposed to participation in war; 
(b) registrant is opposed to all wars; (c) registrant shows religious, ethical 
or moral basis for his claim ; (d) registrant shows training, events, or ex- 
periences which establish the point of origin of his opposition to war: (e) 
registrant shows how he has expressed his beliefs to others: and (f) reg- 
istrant's claim is supported by statements of others which indicate that he 
is sincere in making his claim. If one or more of the above elements is lacking, 
the registrant's claim may be denied, and the reason (s) for the denial would 
be whichever element (s) is (are) lacking. 

5. To deny a prima facie claim, the reasons for such denial must be stated, 
and these reasons must be supported by affirmative evidence in the registrant's 
cover sheet which shows that the statements of his beliefs are not what they 
appear to be. Where the granting or denying of the classification depends on 
subjective facts, mere disbelief is not a sufficient basis in fact for denial of 
the claimed classification. The inconsistent fact or insincere element must be 
evidenced in the cover sheet and stated as a reason for denial. 

6. In analyzing a prima facie claim for conscientious objection, the reg- 
istrant's cover sheet and information obtained at his personal appearance 
should be examined in terms of the following factors : 

6. (a) 'Nature of Claim.— Is the registrant's opposition to war based on pri- 
marily political sociological, philosophical grounds, or solely on personal moral 
code? If "yes." this may be a sufficient reason for denial if such grounds are 
established in the cover sheet. Note, however, if opposition to war is on a 
political, sociological, philosophical basis as well as a religious, ethical, moral 
basis, then his claim is not necessarily deficient. The determining factor would 
be which of these two categories is the more controlling. Policy, pragmatism 
and expediency are a little difficult to understand as they would apply to 
a conscientious objector claim. The term "policy" means a course or plan of 
action, especially one of administrative action; or any system of management 
based upon material or self interest as opposed to a higher principle such as 
equity. "Pragmatism," on the other hand, means the philosophical doctrine that 
practical results are the sole test of truth. "Expediency" means actions because 
of suitability or self interest as distinguished from action motivated by prin- 
ciple. In viewing the meanings of these three key words, it is clear that some 
form of selfish nterest is common to each. Therefore, in determining whether 



144 

a registrant's claim of conscientious objection is based upon policy, pragma- 
tism or expediency, the element to search for is selfish interest of the reg- 
istrant and his apparent disregard for anything but his own well being and 
his own belief of what is right or wrong. If such indications are in the cover 
sheet, then they may be a basis for denial. 

6.(b) Opposition To All Wars. — Is registrant's professed opposition to all 
wars consistently evidenced by all his statements or is he a selective ob- 
jector? To rely on selective objection as a reason for denial, there must be 
specific instances on such objection contained in the cover sheet : Continued 
exclusive abhorence of the Vietnam War may be indicative of selective ob- 
jection. 

6. (c) Sincerity Of Claim. — If the local board finds a registrant's claim to be 
insincere, lacking in veracity, or otherwise insufficient, a reason for such find- 
ing must be supported by facts contained in the registrant's cover sheet or 
disclosed at the registrant's personal appearance. Such facts can also be 
found in information supplied by the registrant, his friends, or solicited from 
references. There are many facts, incidents, characteristics, or mannerisms 
which may or may not be indicative of an insincere claim. The following 
attempts to depict a manner of analyzing a claim to see whether it is sincere. 

6. (c)(1) Does the information presented by the registrant or others indi- 
cate a life style inconsistent with his stated beliefs? Examples of such incon- 
sistent information and acts include : violent acts, conviction for crimes of 
violence, employment in a defense-oriented operation, deliberate hostile atti- 
tude or mannerisms and deliberate shiftiness or evasive or antagonistic man- 
ner. The foregoing may be weighted to determine or help ascertain whether 
or not a registrant is sincere. If the registrant's acts, other than nervous 
mannerisms or apprehensive behavior, are markedly inconsistent with his 
professed beliefs, or if his life style greatly varies from his professed beliefs, 
these may be reasonable indications that his claim is insincere. If such a 
conclusion is reached, it must be supported by facts contained in the reg- 
istrant's cover sheet or developed at his personal appearance and recorded in 
the summary of the appearance. If no facts are contained in the cover sheet, 
then a life style inconsistent with stated beliefs cannot be a basis for denying 
his conscientious objector claim. 

6. (c)(2) How long has the registrant been opposed to participation in any 
war? The lensth of time a registrant has held his professed beliefs is obvi- 
ously relevant in a determination of sincerity. Time alone, however, is not 
absolutely determinative. For example, if the registrant has held his beliefs 
for only a short time span, his claim should show a religious experience, edu- 
cational experience, traumatic event, historical occasion, or some type of 
dramatic occurrence or situation which indicates the point at which his ob- 
jection to war originated. If there is no such indication in the cover sheet or 
from the personal appearance, then this short time period takes on more valid- 
ity as a reason for denial. If the registrant has held his beliefs for a long 
time, his claim should show how his beliefs developed from the point of 
origin to the present. This may be shown by evidence of public expression of 
his conscientious beliefs, statements of his friends, his educators, his min- 
isters, and other relevant people. This development can also be shown by the 
registrant's description of his behavior which shows action and behavior con- 
sistent with his alleged convictions. In analyzing the effect of time on the 
sincerity of a registrant's belief, factors which tend to detract from the reg- 
istrant's sincerity must be evidenced in the file or, if omitted from the file, 
the obvious omission must be noticeable in the cover sheet or this cannot 
be an adequate basis for denying a registrant's claim. 

P>. (c)(3) Has the registrant requested inconsistent classification (s) such as 
a 1-D or 2-A to work in a defense industy? Were these inconsistent classifi- 
cations claimed prior to the point of crystallization? (The time of crystalliza- 
tion is the time when the registrant claims he first became conscientiously op- 
posed to war. This point may be marked by a sudden development of beliefs 
or by the beginning of a slow, deliberate growth process.) If the inconsistent 
classification were claimed prior to the point of crystallization, then they 
alone are not proof of an insufficient claim. If, however, inconsistent classifi- 
cation (s) were claimed subsequent to the point of crystallization, then they 
are significant indications of the registrant's insincerity or at least instability 
of belief. 



145 

6. (c)(4) Was the registrant's demeanor at the courtesy interview or per- 
sonal appearance inconsistent with his stated beliefs: If the affirmative re- 
sponse to this question is relied upon by the local board, then specific examples 
of inconsistent mannerisms (not necessarily nervous, frightened, or apprehen- 
sive behavior), evasive answers to questions, hostile words, motions, statements, 
or answers to questions, should be explicitly described and recorded in the 
summary of the personal appearance. If no concrete example of these incon- 
sistencies can be noted, then the registrant cannot be denied a conscientious 
objector status for this reason. 

(>.(e)(5) Were the registrant's answers to questions at Ids personal appear- 
ance in variance from his statements made in his SSS Form 150 or other 
written claim? If the registrant's answers are so inconsistent from those 
statements made in his SSS Form 150 that they show a marked shallowness 
or instability of belief, or indicate that the registrant does not believe what 
he says in ins SSS Form 150. or that the statements in the SSS Form 150 
do not appear to be his own, (i.e., they were copied from another source), 
and these instances can be established by facts contained in the cover sheet. 
this may be a proper grounds lor denial of a claim for l-O. In analyzing this 
basis as a possible reason for denying a l-O claim, it must be remembered 
that a registrant need not be articulate, nor need he be very eloquent in 
explaining why he believes as he does. In addition, his answers need not 
)><■ identical to'those stated in his SSS Form 150 nor be identical to the tenets 
of his church. They must only evidence a reasonable degree of consistency 
and compatibility with his major premise(s) of conscientious objection to war. 

6. (c)(6) Are the registrant's convictions sufficiently deep to justify a con- 
scientious objector status? In conjunction with a determination of whether or 
not a registrant is sincere, an analysis of the depth of the registrant's beliefs 
is also in order. If the local board believes that the registrant's beliefs are 
immature, shallow, or not a driving force in his life, they may state such a 
reason for denial of the claim. The local board must, however, specify the 
objective facts in the cover sheet or personal appearance which led them to 
this conclusion. There are several factors, responses or characteristics which 
may help in the analysis of the depth of the registrant's beliefs. 

1. Are the registrant's actions compelled the same as those of a traditional, 
religious person? If the registrant professes that his beliefs are those of a 
traditional church and if he claims these beliefs as the basis of his objection, 
then he must sustain a burden of showing that he basically adheres to these 
beliefs. 

2. If th.e registrant's convictions are not of a traditional nature, are they 
held with a strength of the beliefs of a traditionally religious person? For 
this category, the registrant may have a hybrid of beliefs: that is. the basis 
of his objection may be founded both on traditional, religious beliefs and 
non-traditional, moral or ethical standards. Thus, the local board must weigh 
these beliefs and look to the extent to which they control his life. The overall 
influence that such beliefs, however founded, have on his life is significant. 

3. Do the registrant's convictions play a significant role in his life? Are these 
convictions, whatever their basis, as controlling or as guiding a force in the 
registrants' life as the convictions of a traditionally religious person? TCeliance 
on a negative response to these questions must be supported by clear indications 
that the registrant's beliefs are only on a theoretical or academic level and 
do not influence the manner in which he conducts Ids life. 

4. Are the registrant's convictions consistent or inconsistent with his life 
style as evidenced by information in his cover sheet or personal appearance? 
If the local board determines that the registrant's claims are inconsistent and 
thus that his beliefs are not mature, they must establish this inconsistency by 
objective facts in the cover sheet. Indications of a life style that is inconsistent 
with conscientious objector beliefs include participation in violent protests. 
convictions for crimes of violence, record of violent conduct such as brawling, 
fisticuffs, or cruelty. 

5. T>oes the registrant have a lack of knowledge of the beliefs, whatever the 
nature of these beliefs, he professes to follow? Tf the registrant claims objec- 
tion on a traditional religious basis, he should be able to explain the rudi- 
mentary principles of that religion. The registrant does not have to be very 
articu'ate. nor is he required to be able to establish completely the history 
and nuances of his religion, nor must be subscribe to all the tenets of his 
church. lie must, however, be able to explain the basic tenets of the religion 



146 

and how they apply to his life and compel him not to participate in any war. 
on the other hand, if the registrant claims objection on the basis of beliefs 
that are of moral or ethical nature rather than of a traditional religious 
nature, lie tnusl he able to explain the hash- principles or guidelines of his 
beliefs, their origin, and how they influence his life. 

6. Action Taken If the Claim for 1-0 or 1-A-O is Denied— If the local board 
determines that the registrant does not qualify for a 1-0 or 1-A-O classifi- 
cation, the following is required: (a) The factual basis for denying the 1-0 
or 1-A-0 status must be evidenced by information in the registrant's cover 
sheet. The sources of this information include: the SSS Form 150 or written 
claim for conscientious objector status, statements from the registrant's refer- 
ences or others, summaries of personal appearances or interviews, and any 
other information supplied by the registrant or others provided that the reg- 
istrant has notice thereof, (b) The reason for denying the registrant's claim 
must be recorded in his file, (e) The registrant should be notified of the reason 
or reasons for denying his claim for conscientious objector status in accord 
with instructions of the Director. 

We will not attempt to explain here the misleading and illegal elements in 
this LBM; most counselors will notice much of this themselves. Those who 
object to the proposed LBM may wish to let Selective Service National Head- 
quarters know their feelings before it is issued. 

Here and There.— The General Counsel of Selective Service has ruled that a 
local board must reopen classification when a doctor files a prima facie 2-^ 
claim. Furthermore, if he requests consideration by the state medical advisory 
committee when he appeals, the file must be considered by the committee before 
the appeal board acts.*** The National Health Service Corps, a new govern- 
ment agency created by Congress to provide medical care in doctor-short areas, 
is actively recruiting doctors, nurses, dentists, and other medical personnel. 
Service iii the Corps is likely to be approved as alternate service, provided one 
chooses civil-service employment rather than a Public Health Service commis- 
sion. Those interested should write NHSC at 5600 Fishers La., Roekville. Md. 
20852.*** A Kansas City counselor writes that a draft board was infuriated 
when a man refused to take the oath at the personal appearance. Perhaps the 
man should have written the board ahead of time, explaining why he intended 
to affirm. 

Midwest Committee for Draft Counseling. 

Chicago, III., February 10, 1972. 
Dr. Curtis W. Takr, 
Director, Selective Service System, 
Washington, D.C. 

Dear Dr. Tarr : Why has the Selective Service System not. published the 
sections of the Registrants Processing Manual which it has promulgated in 
the Federal Register, either as prepublished proposals or as effective regula- 
tions? 

I have just read Section 613.1 of the Registrants Processing Manual and 
cannot imagine any argument that would persuade anyone that these are not 
regulations within the meaning of Section 13(b) of the Selective Service Act. 
I note that Subsection 7 of this section requires new registrants to complete 
the Registration Questionnaire (Form 100) at the local board office at the 
time they register, stating that they "must sign the completed Registration 
Questionnaire in the presence of the registrar." This simply contradicts the 
presently effective Regulation 1621.10. which allows a registrant to mail back 
his questionnaire within ten clays after it was rendered to him. and the re- 
vised Regulation 1621.10 published as a proposal in the Federal Register for 
January 12, 1972. would continue this right. 

In one case brought to my attention today, a man who was registering at 
a Midwestern draft board claimed his right to take the questionnaire home 
and complete it thoughtfully with the advice of his family and other advisers, 
promising to return it within the ten days allowed by the rules. The clerk 
refused to oermit this, pointing to the requirement of the Registrants Process- 
ing Manna 1 , and the young man's adviser was told, when he called the rele- 
vant state headquarters, that the clerk was right because the Registrants 
Processing Manual had superseded the Regulation! So whether you or your 
General Counsel meant the Registrants Processing Manual to function as a 



147 

new set of Regulations or not, it is quite clear that Selectice Service personnel 
at all levels will treat them as Regulations. 

I submit that failure to prepublish in the Federal Register is a violation of 
the Ac! passed by Congress in 1971. And in addition, it is a violation of the 
elementary fairness to registrants Congress sought to legislate. I hope you 
will reconsider. Although you promulgated the first sections of the Registrants 
Processing Manual on January 14. 1972, it is not too late to withdraw them 
and start the process provided by law. 
Yours very truly, 

Joseph S. Tuchixsky. 



National Headquarters. Selective Service System, 

Washington, B.C., February 15, 1912. 
Mr. Joseph S. Tuchixsky, 
Mirficcst Committee for Draft Counseling, 
Chicago, III 

Dear Mr. Tuchixsky: Reference is made to your letter of February 10, 
1972, in which you allege that there is an apparent conflict between subsection 
7 of section 613.1 of the Registrant's Processing Manual and section 1621.10 
of the regulations. You further state that local boards are giving effect to the 
Registrants Processing Manual to the extent that it supersedes the regula- 
tions. 

It should be noted from my announcement of January 14, 1972, upon the 
issuance of the Registrants Processing Manual, that this manual is a com- 
pilation of instructions required to implement the Selective Service law and 
regulations necessary for the administration of the Selective Service System. 
The manual is not a regulation and accordingly is not subject to the require- 
ments of section 13(b) of the Military Selective Service Act. 

With respect to the alleged conflict between the manual and the regula- 
tions, it should be noted that the requirement that a registrant must sign 
the completed registration questionnaire in the presence of the registrar per- 
tains only to that situation where the registrant completes the questionnaire 
in the presence of the registrar. Should the intent be to require this of all 
registrants and all questionnaires, the preceding statement that the registrar 
must verify the registrant's signature would be contradictory since the reg- 
istrar is witnessing the signature in the first instance. Accordingly, section 
1621.10 is not in conflict with subsection 7. In fact, subsection 7 implements 
section 1021.10 to provide relief to the registrant who elects not to return 
the questionnaire by mail. 

I regret that one clerk at a local board has misinterpreted the language of 
the manual in light of the regulations. From this to say. however, that "it 
is rpiite clear that selective service personnel at all levels will treat them 
[Registrants Processing Manual] as regulations'' is a conclusion without a 
basis in fact. However, so that similar misunderstandings do not occur. I 
am directing that the language in subsection 7 be restated to more clearly 
express the intent. 

I do not concur in your opinion that the manual must be published in the 
Federal Register. Nor is a failure to do so a violation of fairness to reg- 
istrants. In fact, the opposite conclusion is true since by use of the manual 
a registrant, as well as the clerk of the local board, has a simplified compila- 
tion of the law. regulations, and other operational instructions in nn? place 
as an easy, identifiable reference for assuring that the registrant is properly 
processed. 

Sincerely. 

"Walter IT. Morse. 

General Counsel. 



Illixois Headquarters — Selective Service System 
ixstructioxs for registrars 

1. It shall be the duty of (1) every male citizen of the United States, and 
(2) every male alien in a permanent residence status who is in. or who 
hereafter enters, the United States, who shall have attained the l^th anni- 



148 

versary of the day of his birth and who shall not have attained the 26th 
anniversary of the day of his birth, to present himself for and submit to 
registration. 

2. Every person required to register shall do so within the period which 
begins 30 days prior to the 38th anniversary of the day of his birth, and 
which ends 30 days after the 18th anniversary of the day of his birth, except 
that any alien who incurs liability for registration after attaining the age 
of 18 shall register within 6 months of the day he incurred such liability to 
register. 

3. Identification of the Registrant. — When a young man presents himself 
and submits to registration at his own local board, any other local board of 
Selective Service, or before any uncompensated registrar, it shall be the re- 
sponsibility of the registrar to verify the registrant's identity through exami- 
nation of the registrant's birth certificate. Social Security Account Number 
card, driver's license, school or college activity card, credit cards, or other 
means of identification that he may possess. 

4. Registration of Persons Separated from the Armed Forces. — Any person 
not previously registered who (1) is separated from the Armed Forces of 
the United States after having served honorably on active duty, other than 
active duty for training, for not less than 6 months, or (2) has served as a 
commissioned officer in the National Oceanic and Atmospheric Administration 
or the Public Health Service for not less than 24 months, shall not be re- 
quired to be registered. Question 1 of Series I — Military Record — on the SSS 
Form 100 has a block for a registrant to indicate whether or not he has 
completed 6 months of active duty — excluding active duty for training. If a 
registrant checks the yes box when registering, he should be required to pro- 
duce a copy of his DD Form 214. If he meets the requirements above, the 
registration process should be terminated. 

5. Preparation of the Registration Questionnaire. — Upon the establishment 
of his eligibility to register, the registrar will issue the Registration Ques- 
tionnaire (SSS Form 100) to the registrant and provide instructions in its 
preparation. The registrar will provide such assistance as is required in order 
for the registrant to complete the Registration Questionnaire. If the reg- 
istrant is unable to write or cannot write legibly, it is permissible for the 
registrar to complete the Questionnaire based upon the information provided 
by the registrant. The use of the Tally Sheet (SSS Form 4) is no longer re- 
quired for registration and will not be used. A registration is not complete and 
should not be certified by a registrar until all items on the Questionnaire are 
completed. Under no circumstances will a registrant be permitted to take a 
Questionnaire out of the registrar's office for the purpose of obtaining in- 
formation and completing the form. If the registrant does not have the re- 
quired information, he must obtain it and return in order that he may he 
registered. 

6. Review and Certification.— Alter preparation and signing by the reg- 
istrant, the registrar shall review the Registration Questionnaire (SSS Form 
100) for completeness, accuracy of descriptive information provided, and 
verification of the registrant's signature as entered. The registrant must sign 
the completed Registration Questionnaire in the presence of the registrar, 
except that if the registrant is unable or refuses to sign the Registration 
Questionnaire or to make a mark in lieu of a signature, the registrar shall 
sign registrant's name and indicate that he has clone so by signing his own 
name, followed by the word "Registrar'' beneath the name of registrant. The 
act of the registrar in so doing shall have the same force and effect as if the 
registrant had signed the Registration Questionnaire and such registrant 
shall thereby be registered. Upon completion of the review of the Registration 
Questionnaire, the registrar will then certify to the registration and enter 
the date of registration on the form. 

7. Place of Residence. — The registrar shall require the registrant to give 
sufficient address information to establish the proper location of his place of 
residence and mailing address for forwarding of notices. The registrant may 
determine what place he desires to give as his residence when he is not 
located in the same place all the time. On the second line on page one of the 
SSS Form 100, the county should be entered in parenthesis between the city 
and state if the identification of the county is necessary to determine the 
proper board of jurisdiction. The registrant must give a place of residence 
within the continental United States, the State of Alaska, the State of Hawaii, 



149 

Puerto Rico, the Virgin Islands. Guam, or the Canal Zone, if he presents 
himself for registration in any of those places. 

S. Forwarding. — When registration has been accomplished at other than the 
local board of jurisdiction, the registrar will forward the Registration Ques- 
tionnaire to the local board having jurisdiction over the registrant's place 
of residence, if known. Otherwise, it will be forwarded to the State Director 
of Selective Service concerned ior transmittal to the proper local board. 

9. An inmate of an insane asylum, jail, penitentiary, reformatory, or similar 
institution, who is required to be registered on the day he leaves such insti- 
tution, shall be registered in the manner prescribed above. The superintendent 
or warden of such institution or any person designated by the superintendent 
or warden shall perform the duties of registrar. 

10. When the Registration Questionnaire (SSS Form 100) is beine filled out 
by the registrant, the superintendent, warden, or other designated person, 
acting in his capacity as registrar, shall be certain that no reference is made 
on the Registration Questionnaire to indicate that the inmate was registered 
in an institution or by an official thereof. If the inmate does not have a perma- 
nent place of residence or an address where he intends to be or where he can 
be located, the address of the local board of the area in which the institution 
is located shall be entered in item 2 of the Registration Questionnaire (SSS 
Form 100). Under no circumstances shall the address of the institution be 
given as the place of residence or as the mailing address of the inmate who 
is being registered. 

11. The superintendent, warden, or other designated person acting as reg- 
istrar shall then explain to the registrant his obligations under the Military 
Selective Service Act. particularly the requirement to keep his local board 
advised of his current mailing address. 

12. The superintendent, warden, or other designated person shall mail the 
Registration Questionnaire (SSS Form 100) of a person registered under the 
provisions of this paragraph to the State Director of the state having juris- 
diction over the area in which the institution is located. 

13. Preaddressed envelopes and blank Questionnaires will be furnished all 
registrars. It is requested that registrars mail all completed Questionnaires 
to the parent local board on each Friday and on the last working clay of each 
month. A short note may be enclosed with any mailing of Questionnaires to 
the parent local board requesting a resupply of envelopes and Questionnaires. 

National Headquarters. Selective Service System. 

Washington, D.C., October 26, 1971. 
Letter to all State Directors (00-43) 
Subject: Use of Tape Recorders During Personal Appearances 

The use of tape recorders during personal appearances before local boards 
or appeal boards is not authorized by the selective service law or regulations. 
Consequently, no tape recording equipment will be permitted at any personal 
appearance before a local board or appeal board. Executive secretaries should 
he requested to bring this promptly to the attention of the local board chair- 
man or appeal board chairman. 

Daniel J. Cronin, 
Assistant Deputy Director, Operations. 



Midavest Committee for Draft Counseling. 

Chicago, 111., December 21, 1971. 
Mr. Walter H. Morse. 
General Counsel, Selective Service System, 
Washington, D.C. 

Dear Mr. Morse : I note that Selective Service National Headquarters has 
just issued Letter to All State Directors No. 00-43, forbidding registrants to 
use tape recorders at personal appearances, though it has evidently not pub- 
lished it in the Federal Register as a proposed or actual regulation. 
I would appreciate your opinion concerning two questions : 
1. Under what statutory or other authority is this regulation issued? How 
does the Selective Service System have legal control over recording devices in 
the possession of citizens who attend its hearings? 



150 

2. Why was the regulation promulgated by LTASD 00-43 not published for 

public M thirty days before going into effect, then republished for en- 

actment, as contemplated by Section 13(b) of the current Act? 

Since this matter affects the rights and interests of many registrants who 
aspire to fulfill their obligation under Regulation 1624.2(b) — or its successor 
regulation — to summarize accurately in writing the information they present 
orally at personal appearances, I would appreciate your early response to 

I liese quesl ions. 

Sincerely, 

Joseph S. Tuchinsky. 

National Headquarters, Selective Service System, 

Washington, D.C., December 30, 1971. 
Mr. Joseph S. Tuchinsky, 
Chicago, III. 

Dear Mr. Tuchinsky: This is in response to your letter of December 21, 
1971, in which you commented on our recently issued Letter to All State 
Directors (00-43), which places certain restrictions upon the rights of reg- 
istrants to use tape recorders, and requested our opinion in the form of two 
questions as to our authority to do so. In view of the present status of the 
law and with respect to verbatim transcriptions of local or appeal board 
meetings we do not believe it feasible to begin such a practice by authorizing 
the use of tape recorders at the registrant's personal appearances. Our con- 
clusion in this matter is supported by two reasons. 

First, existing regulations and case law clearly indicate that neither a 
verbatim written transcript nor a tape recorded transcript of local board 
meetings is required. 

Title 32 C.F.R.. section 1624.2(b) requires only that information presented 
by the registrant ". . . if oral, shall he summarized in writing by the reg- 
istrant and . . . shall be placed in the registrant's file." C emphasis supplied) 
Title 32 C.F.R.. section 1623.1 (2) further states, ". . . oral information shall 
not be considered unless it is summarized in writing and the summary placed 
in the registrant's file." Title 32 C.F.R., section 1626.13(a) states. "If any 
information considered by the local board does not appear in the written 
information in the file, other than information presented orally by the reg- 
istrant or in his behalf at a personal appearance . . . the local board shall 
prepare and place in the file a written summary of such information." 

The Seventh Circuit Court of Appeals, reading the foregoing regulations 
together, has concluded that they ". . . in effect preclude the local board from 
inserting a registrant's file information presented orally by the registrant or 
in his behalf at a personal appearance . . ." U.S. v. Fisher, 442 F.2d 109 (1971). 

The second reason for not using verbatim transcripts of local board meetings 
is that such transcripts would invite a review of the mental processes of board 
members in classifying registrants. To the present time, courts have refused 
to consider evidence involving the mental processes of board members. 

This view was affirmed most recently in the Ninth Circuit in the case of 
U.S. v. Lloii/J, 431 F.2d 160 (1971). In thf> Lloyd case the court observed: 

". . . Congress did not authorize the defendant to try the members of the 
board by . . . examining them about their mental processes in arriving at 
their decision." 

This view has been generallv accepted by the courts. Camn v. 77.5?.. 413 
F.2d 419. 5th Circuit (1969) ; U.S. v. Beere, Cr. No. 1?.2S3, TJ.S.D.C. Conn. 

(1969). Affirmed. Per Curiam. - -F.2d , 2d Circuit (1969) ; U.S. v. Sascvic. 

117 F. Supp. 371, S.D.N.T. (1953). reversed on other grounds; U.S. v. Glesaing, 

II F.R.D. 501 (D. Minn. 1951). 

In specific response to your inquiry as to why the provisions of our Letter 
to All Stnte Directors (00-43) has not been published for public comment 30 
days before going into effect, it is our position that the letter in question is 
not in the nature of regulation which is contemplated by the provisions of 
section 13(b) of the Military Selective Service Act. 

You will recall that President Truman promulgated Selective Service Regu- 
lations by Executive Order in the summer of 1948. Thereafter, and for 23 
years in which amendments to existing regulations or additional regulations 
were promulgated, the term regulations has had a precise meaning. That is, 
the word was used as denoting Presidential regulations or regulations issued 



151 

by the Director of Selective Service pursuant to Executive Order 9979 (July 
22, 1948). Accordingly, it must be presumed that the Congress, when it 
amended section 13(b) of the Military Selective Service Act, did so with this 
historical reference in mind. 

In view of the preciseness with which the members of the Senate and the 
staffs available to them developed the language in Public Law 92-129, it is 
unreasonable to believe that the Congress intended the requirement as you 
stated it. For this reason, it is our position that only changes to those regu- 
lations heretofore issued by the President and regulations issued by the 
Director pursuant to Executive Order 9979 or pursuant to section 6(j) of the 
Military Selective Service Act. must be published in the Federal Register 30 
days in advance of the date on which they become effective and subject to 
public comment. 

In further support of the position we have taken in this matter, your 
attention is invited to the Congressional record for June 17, 1971. which con- 
tains an exchange of comments between Senator Stennis and Senator Ken- 
nedy which we feel also tends to be supportive of our position in this matter. 

We hope that we have been of assistance to you in our response to your 
inquiry. 

Sincerely, 

Walter H. Morse, 

General Counsel. 



Identical Letter Sext to All State Directors 

February 9, 1972. 

Mr. Felix R. Petrey, 

State Director, Selective Service System, 

Montgomery, Ala. 

Dear Mr. Petrey: Many state directors have expressed concern about the 
application of paragraph 5(b) in our Letter to All State Directors (00-53) dated 
January 11, 1972. In that letter, we provided for a uniform method of placing all 
registrants who are in Extended Priority Subgroup A into the Second Priority 
Selection Group at the expiration of a 270-day period beginning July 1, 1971. The 
pertinent sentence in that paragraph reads: "For registrants in Subgroup A, any 
of that time which is prior to July 1, 1971, and the time from July 1, 1971, until 
the date the revised Parts 1624 and 1626 of the Selective Service Regulations will 
become effective, shall count toward the 270 days of consecutive availability." 

The intent of paragraph 5(b) was that all people who are in Subgroup A, 
regardless of when they became available for call, should receive credit for the 270- 
day period beginning July 1, 1971. Those who became available before July first 
began to accumulate credit on the date of availability. This intent has been mis- 
understood, and part of the purpose of this letter is to clarify that intention. 

We now must face another problem, which relates to those members of Subgroup 
A in the Extended Priority Selection Group who still are on delays owing to per- 
sonal appearances and pending appeals. If they were aware of this procedure, 
and we could make it possible for them to give up their rights for personal ap- 
pearances or appeals, they could take advantage of the 270-day period and their 
liability in Extended Priority would terminate late in March. 

I know that many state directors feel that these men, who have delayed in- 
duction in every way possible and have attempted to frustrate both the system 
and some of us, should be required to serve. I recognize that it disturbs some of 
our people when it becomes possible for this type of person to avoid service. But 
on the other hand, the Department of Defense probably will ask for us to induct 
very few people in the months ahead. The Army would rather work with younger 
men who have a willingness to serve. Furthermore, Selective Service would be 
much better off to deal with younger men and to permit some of those recalcitrant 
persons to become eligible for classification into Second Priority. 

Accordingly, we have decided that we should contact all men in Extended 
Priority Subgroup A to notify them that they may withdraw their requests for 
personal appearances and appeals, and thereby enter the Second Priority Selection 
Group at the end of the 270-day period beginning July 1, 1971. Attached is a letter 
which I recommend that you send to all registrants in Extended Priority Subgroup 
A who currently have personal appearances and appeals pending. Obviously these 
letters must be mailed promptly in view of the time element. 



152 

I solicit your cooperation in this matter. I am convinced that if we handle this 
matter in the way I have suggested, we in Selective Service, the Arm)', and the 
nation as a whole will he better served. 

Sincerely, 

Curtis W. Tarr. 

Attachment. 

Recommended Letter to Registrants 

A review of your selective service file indicates that you are currently in 
the Extended Priority Selection Group, Subgroup A, and that you have pend- 
ing a request for a personal appearance and/or an appeal. 

Due to circumstances beyond your control, your request for such personal 
appearance or appeal could not be expeditiously handled, and therefore it is 
recommended that you give serious consideration to writing your local board 
and advising them that you desire to withdraw such request for a personal 
appearance or appeal. 

We feel that this action will be in your best interests, because you will be 
placed in tbe Second Priority Selection Group, which is a lower group, on 
March 26, 1972, thereby making you less vulnerable for induction into the 
armed forces. Such a letter should be received by your local board not later 
than March 20, 1972. 

Inquiries with regard to the policy on prime exposure to induction or alter- 
nate service should be addressed to , the State Di- 
rector, at l 

(address) 



1 NOTE : Recommend the statement to this effect In order that explanations on the 
basis of policy can be provided from the State Director's office. Inasmuch as so many 
of the records will be in appeal board files as opposed to local board files, if a proper 
address for inquiry is not reflected in the letter undue confusion in correspondence is 
likely to exist at the local board level. 

Senator Kennedy. Well, I want to thank all of yon gentlemen 
very much. We have covered in considerable detail the rather tech- 
nical provisions of the changes in the act and the fact that the 
Selective Service has failed to comply with congressional intent. 
T think you have given us a good doal of ammunition from the prac- 
tical point of view and from vour personal experience where there 
has been a failure by Selective Service to live up to the purpose of con- 
gressional action. I think it is enormously helpful to us in trying to see 
what can be done to alter and change these regulations. I want to thank 
all of you very much for your appearance here. It has been very helpful. 

Our next witness is Mr. Wilson. 

STATEMENT OF WILLIAM K. WILSON 

Mr. Wilson. Mr. Chairman, I was invited by the committee to 
relate to the committee my personal experience as related to the 
conscientious objector civilian work area. 

I will just briefly outline the activities and experience I have had. 
Back in March of 1970 I received my conscientious objector classi- 
fication and along with that an order to seek employment in terms 
of civilian work. 

I attempted to do that immediately within the period of time spe- 
cified in which to do so. I had gotten employment with the American 
Friends Service Committee after having come to Elizabeth, N.J. 
and leaving a previous employment with the Xew York City Family 
Court System. 

After I had received the assignment to work I notified the local 
board of the assignment and the local board sent me a letter indi- 



153 

eating the fact that this assignment was not acceptable to which I 
then wrote to them requesting reasons as to why such an assignment 
was not acceptable or inappropriate as they termed it. 

In the letter which they sent me they indicated the fact that they 
concurred with the New' Jersey headquarters of Selective Service, 
the State in which the project was located, and they were advised 
that the assignment was inappropriate. They failed to indicate the 
reasons why. T had also requested that the local board consider the 
previously suggested areas of employment in which I could be placed. 

They responded by sending a letter with three outlined areas of 
work and the first area of work was in highway work; the second, 
hospital work; the third, farm work. I found the work to be in- 
appropriate in all three areas and notified the local board that I 
felt uncomfortable at that time in accepting any one of the assign- 
ments and also requested at the same time that they give some kind 
of reasons as to why the American Friends Service Committee was 
inappropriate as they termed it. 

Later on a meeting was set up, a meeting of the registrant, the 
local board and a state representative of Selective Service. 

Senator Kennedy. Let me ask you if I understand you correctly. 
What were you doing previously? 

Mr. Wilson. Before when? 

Senator Kennedy. When you received your notification? 

Mr. "Wilson. I was working in the Xew York City family courts 
as a social worker. 

Mr. Kennedy. Doing what sort of work? 

Mr. Wilson. Work with juveniles, planning the disposition of cases 
and so on. 

Senator Kennedy. And how long were you doing that? 

Mr. Wilson. For approximately a year and a half. 

Senator Kennedy. Working with juveniles that had some kind of 
trouble with the law. is that right \ You would counsel them and 
work with them? 

Mr. Wilson. That is right. 

Senator Kennedy. And then when you were doing this work you 
got your notification, is that right? 

Mr. Wilson. Yes. 

Senator Kennedy. And vou counseled with the Friends? 

Mr. Wilson. Right. 

Senator Kennedy. And as I understand it, the Selective Service 
gave you three different alternatives of work to do, is that right? 

Mr. Wilson. That is right. 

Senator Kennedy. It could be farm laborer? 

Mr. Wilson. Yes. 

Senator Kennedy. Highway work or hospital work? 

Mr. Wilson. Yes. 

Senator Kennedy. Thev were taking you out of this counseling" 
work? 

Mr. Wilson. That's right. 

Senator Kennedy. That you do and you were able to do and were 
doing a good job of ? 

Mr. Wilson. According to my evaluation anyway. And then after 



154 

I had received these assignments, like I said, I had turned them 
down because I did not feel comfortable and plus the fact that the 
local board had not guided me in job selection by answering why 
the AFSC was inappropriate. 

Senator Kennedy. Before you worked in the hospital situation in 
New York, what had you been doing before that? 

Mr. Wilson. You mean the New York City Family Courts. I was 
working with VISTA. 

Senator Kennedy. What were you doing with VISTA? 

Mr. Wilson. Basically community organizing. 

Senator Kennedy. Where? 

Mr. Wilson. New York City. 

Senator Kennedy. How long did you work with VISTA? 

Mr. Wilson. Approximately two years. 

Senator Kennedy. Your work from what you have said here was 
basically in community action or the area of social concern, was it not? 

You had been working with juveniles who had some difficulties 
with the law. You worked as a VISTA volunteer ? 

Mr. Wilson. Yes. 

Senator Kennedy. You worked also in some relocation programs 
in trying to assist people whose houses had been torn down? 

Mr. Wilson. Yes. 

Senator Kennedy. You worked in this area and in your record 
was this history of public service. This was well understood or well 
documented, but yet when you were attempting to gain a conscien- 
tious objector position, the alternatives that were given to you were 
mostly menial. I would think that is an understatement, don't you? 

Mr. Wilson. That was my impression of the three choices and I 
tried to inform the local board of the fact that I was uncomfortable 
in all of them. We set up a meeting with the local board and the 
State representative. 

Senator Kennedy. Now, you are in the process of appealing that 
now? 

Mr. Wilson. Yes, the case has since been to the general counsel's 
office in national headquarters and also to Dr. Tarr's office too and I 
have not received any relief from those offices. I am presently faced 
with the possibility of an indictment. 

Senator Kennedy. What kind of work would you be doing on the 
highways do you imagine? 

Mr. Wilson. Well, according to the personnel director after hav- 
ing reported in compliance with the work order that was sent to 
me 

Senator Kennedy. That was when you were assigned work in the 
highways ? 

Mr. Wilson. Yes. The position was that of a maintenance helper 
and the duties entailed such things as road patching, picking-up and 
dumping trash. 

Senator Kennedy. Road patching and dumping trash? 

Mr. Wilson. Yes; after having spoken to the personnel director 
I did not feel that the assignment was truly meaningful or relevant 
to the priority of national interests. 

Senator Kennedy. Is this in the State of Virginia? 



•&■■ 



155 

Mr. Wilson. Yes. 

Senator Kennedy. Who else does that kind of roadwork in Vir- 
ginia? 

Mr. Wilson. Well, as far as I know prison laborers are responsible. 

Senator Kennedy. Prison laborors ? 

Mr. "Wilson. Right, and I feel this was punitive. 

Senator Kennedy. And that is the reason you are appealing? 
Would you have welcomed the opportunity to continue in the counsel- 
ing work that you had been involved in in Xew Jersey '. 

Mr. Wilsox. I feel that this type of work would be meaningful 
and relevant and in the national interest, especially at this time and 
age. and would be more appropriate and as such. I would certainly 
feel more comfortable in serving in that capacity. Plus, I felt that 
hopefully they could utilize what skills or abilities that I had just 
as they would do if I entered the military. Xaturally they would 
be interested in the type of ability of a soldier in making assign- 
ments. 

Senator Kennedy. I think the point you made was made very 
clearly. Obviouslv the kind of work you were skilled to do was a great 
deal different than that of a road operator. 

Your record and experience and involvement in trying to help and 
assist people is well documented. I think your case dramatizes in 
a personal way the dilemma which I am sure thousands of young 
people are faced with. I want to thank you very much for coming. 

Mr. Wilson. Thanks for the opportunity of allowing me to come. 

Senator Kennedy. Our next panel consists of Conrad Brunk, Na- 
tional Interreligious Service Board for Conscientious Objectors; Bela 
Silard, American Ethical Union; Mr. Arlo Tatum, Central Com- 
mittee for Conscientious Objectors. 

I want to say first, gentlemen, I am going to have to conclude this 
just a little before 5 o'clock. 

STATEMENT OF CONRAD BRUNK, NATIONAL INTERRELIGIOUS 
SERVICE BOARD FOR CONSCIENTIOUS OBJECTORS 

Mr. Brtjnk. Thank you. I have a prepared statement which I will 
submit for the record and I will make only a few comments since 
some of the points covered in my statement have already been dis- 
cussed by other witnesses today. 

I am Conrad Brunk. assistant director of the National Inter- 
religious Service Board for Conscientious Objectors. Our organi- 
zation was involved in 1940 with the setting up of the civilian work 
program and we have been working very closely with conscientious 
objectors since 1940 and have, I think, 'a very good understanding 
of the way in which the system has functioned in the past and is 
functioning new. On the basis of that background there are a few 
comments I would like to make. 

Mr. Karpatkin has already mentioned this afternoon the failure 
of the _ regulations to implement the requirement that the director 
supervise the alternate service program. This amendment to the law 
Ave had largely welcomed because we felt it would take care of many 
of the abuses like those you have just heard with Mr. Wilson's case. 



156 

That is just one case in many that we get in our files every day of 
registrants being subjected to local prejudices. 

1 personally am from the same area that Mr. Wilson is from and 
I know many conscientious objectors from that same area who have 
been assigned to much more meaningful jobs, like those Mr. Wilson 
proposed. But Mr. Wilson's board chose to apply a strict, disruptive 
standard to him which is not applied to other conscientious objectors 
in the same community. 

We had hoped that the requirement in the law that the Director 
administer the work program would remedy this situation but as 
Mr. Karpatkin pointed out, the Director has redelegated this au- 
thority back to the State directors with one exception, not allowing 
for the review of any decisions made by a State director. I was 
happy to see this morning that Dr. Tarr said he was going to super- 
vise very closely the actions of these State directors in their adminis- 
tration of this civilian work program but what concerns us is the 
fact that this could easily be and should be, incorporated into the 
regulations. 

Registrants should be given the right to appeal from decisions 
made by the State directors, Mr. Wilson should be able to get some 
kind of a decision from the State director in his case because the 
Director can see the kind of discrimination and local prejudices in- 
volved. 

But registrants are not informed of this right to appeal to the 
national Director. It was never mentioned in the regulations or in 
the registrants' processing manual or letters to State directors that 
a registrant has this kind of right to review by the national Director. 

There are several instances in which this review is precluded. For 
example, the State director has the right to determine at any time 
when a man is on the job that his job is no longer appropriate, and 
without any notification to him. without any reasons other than the 
fact that he doesn't think the job is any longer in the national inter- 
est, he can transfer this man to another job. There is no provision for 
him to appeal this decision to the National Director. He is subject 
to the decision of the State director entirely. 

If the registrant volunteers for a civilian work position and the 
State director denies the job that he submits, he cannot appeal that 
decision to the National Director. If he submits up to three jobs 
that have been denied by the State director and the National Direc- 
tor during the 60 days which he has, the State director is then author- 
ized to issue a mandatory work order to this man to a job of his 
own choosing. 

This mandatory work order is not reviewable by the National 
Director, at least the regulations make no provision for a review. 
This is a drawback position even from the old regulations under 
the 1967 Law which put the power to supervise the civilian work 
program in the hands of the local board, but the regulations still 
required that a mandatory work assignment against the registrant's 
will be reviewed and approved by the National Director. 

Now that the law requires the National Director to supervise the 
work program, the regulations have changed so that the Director 
doesn't even have to review the issuance of a mandatory work order. 



157 

This is also the case with a man who is requesting early release 
from the 1-W work program on a bonafide ground such as physical 
disability, hardship, or other reasons which would qualify him for 
early release. 

The Director used to make this decision under the old law which 
didn't require him to do so, but now that the law requires the Di- 
rector to supervise the program, the Director no longer makes the 
decision. So the point that we are making is why not inform the 
registrant that he has the right to appeal if in fact the law re- 
quires that the National Director make the final decision? This is 
the point we have tried to make again and again in our own re- 
sponses to the prepublished regulations. 

Only the man who has access to draft counseling, the man who 
is in college and has access to draft counseling centers and so on 
finds out that he has these rights. Selective Service isn't telling him 
through its regulations or any other directive. 

Senator Kennedy. How about that wonderful regulation that lets 
the registrant come in and permits the actual inductor to sign his 
name. That is a wonderful rule that we have particularly in the 
case of Spanish speaking people and other minorities. Southeastern 
Massachusetts has a heavy Portuguese immigration population com- 
ing in so you get a fellow who comes in, speaking very little Eng- 
lish, and the inductor is such a good friend of his that they sign 
his name for him and you are really taken care of I guess under 
those circumstances. 

Mr. Brtjnk. As an example of what seems to be a deliberate at- 
tempt to keep people unaware of their rights, when the first public 
information pamphlet was published last summer b}^ Selective Serv- 
ice, these pamphlets were to be distributed to the registrants to in- 
form them of their rights and responsibilities. The 1-0 classifica- 
tion was never mentioned as an available classification in these 
pamphlets explanation of the lottery system. These pamphlets usu- 
ally indicated that a man could be drafted only if he was in class 
1-A, even though in fact a man can be drafted from class 1-A-O 
and 1-0 as well. We suggested that this be corrected to include 
1-A-O and 1-0 classes and the response was at that time that when 
we put these classifications 1-A-O and 1-0 before the registrants, 
they start asking questions about what they are and are not en- 
titled to. 

Senator Kennedy. What about the new form 150? 

Mr. Brtjnk. Concerning the new form 150, I have attached an 
interesting comprehension study of this by Mr. Michael C. Brophy 
and Mr. Marc Mayerhoff of the University of Wisconsin — Mil- 
waukee, which showed that the present form 150 tested out to at 
least high school graduate level comprehension by one test formula, 
the Fry formula, and to college level comprehension by the other, 
the Dale-Chall formula. The recently proposed form 150, however, 
tested out at a college graduate level by the Dale-Chall formula, and 
a college level by the Fry Formula. 

In other words, the Dale-Chall formula showed that the form 150 
in order to be understood would have to read by a person with a 
comprehension level of a college graduate. The Fry formula, which 

80-620 — 72 11 



158 

uses several different standards of measurements, is not quite as 
tough. It showed that the proposed form 150 required at least a col- 
lege junior level of comprehension, not in order to answer the ques- 
tions, but to just understand them. 

This is an example of the conscientious objector provision really 
being reserved for the educated and articulate person. For instance, 
if you take a man who is not a traditional religious conscientious 
objector who feels on the basis of nonreligious grounds he is op- 
posed to participation in a war, this man, in my opinion, if he tries 
to file a conscientious objector claim, is running up against almost 
impossible odds because he just does not know the kind of philosophy 
and moral and ethical vocabulary that is in fact required to fit 
himself into the framework that is set up for him by the form 150 
and by LBM 107. 

I think Mr. Silard will comment on this problem. I wanted to 
point other things that are amiss with the Selective Service program. 
Although Congress has required that reasons be given for denial 
of any adverse claim to a registrant by local boards and appeal 
boards, there is no requirement that reasons be given for the denial 
of alternative service positions. 

Mr. Wilson's case is a case in point. He was never given any 
reason why his job in the American Friends Service Committee was 
not appropriate. Very seldom is a man given a reason. 

In addition to this the Director has never spelled out any criteria 
of what is appropriate civilian work. The new regulation, for ex- 
ample, do not specify what types of jobs are in the national inter- 
est. They specify the types of employers. You must either work for 
a Government agency or a nonprofit private agenc}^ or in a job at a 
profit-making agency that does not itself involve any profit making. 

It next tells you what kind of employers are appropriate but 
nowhere in the regulations does it tell you what kind of jobs are 
appropriate. The only regulation which makes an attempt, which is 
1660.6(a) (1), says the job must fulfill the specifications of the law 
and regulations. 

Now, that is the definition of appropriate work. It doesn't help 
local boards and State directors very much in term of knowing 
whether or not a job is appropriate. I would like to call your at- 
tention to a case which we feel is one of the most incredible that 
we have come across in the alternate service program and it involves 
all of these points I have been talking about. 

This is the case of Walter Cook, a Missouri registrant whose con- 
viction was reversed last July by the 8th Circuit Court of Ap- 
peals with the following statement : "If the Selective Service intends 
to prosecute young men for failure to perform their obligation to 
perform civilian service, we think in light of due process require- 
ments that the Selective Service System must adopt well-defined ad- 
ministrative rules and regulations which articulate the standards of 
required performance and provide for appropriate notice of vio- 
lations of those standards." 

This relates to the point Mr. Karpatkin made about the fact that 
the employer can decide that a man is not meeting the standards 
of the job and there are no standards of performance outlined. 



159 

Now, Mr. Cook was ordered in 19G5 to perform civilian work. He 
complied with the order. He was transferred from his first job 
because he felt he could not work on Saturdays due to the fact that 
he was affiliated with the Worldwide Church of God and their Sab- 
bath was on Saturday and this did not fit into the employer's scheme 
of things. So he was transferred to another job. 

At this time he developed, or the job aggravated, a congenital 
back disability, a condition which was at the time a disqualifying 
condition under Army regulations and still is a condition for which 
one must be released" from the Armed Forces. He stopped his job 
because he was taking treatments from an osteopath for this condi- 
tion and the osteopath recommended that he be given a sedentary 
job. However he was employed at the University of Missouri Col- 
lege of Agriculture and given a job as a janitor. 

He could not perform the work because of his worsening back con- 
dition and at this time he was receiving total disability payments 
from the John Hancock Insurance Co., and one other insurance com- 
pany. They ruled him to be totally disabled. He had been refused 
employment when he was seeking alternate service with the Civil 
Service Commission who rejected him because their doctors found 
and put in his file letters stating that he was disabled and unable 
to perform any work which the Civil Service Commission had for 
him in the Post Office Department. 

But despite this, he was prosecuted for "failure to perform satis- 
factorily," he was convicted by a jury in the District Court of Mis- 
souri, and the decision was overturned by the 8th Circuit Court. 
After 7 years this man is still in class 1-W, and just recently the 
State director has ordered him back to work to finish up this alter- 
nate service work. 

His case is now at national headquarters of Selective Service. We 
are asking the National Director to intervene and release this man. 
For the past 5 years he has not been able to get a job because of his 
draft status. So far the Director has refused to release Cook from 
his new order to work. 

It should be pointed out that new regulations do not even authorize 
the Director to release that man now as the old regulations did. 
They do not even require the State director to release him, regardless 
of his physical condition. 

I will submit the remainder of my concerns to the record in my 
prepared statement. 

Senator Kexnedy. We will make sure that your statement is put 
in the record. 

The next witness is Mr. Bel a Silard, American Ethical Union. 
(The prepared statement of Conrad Brunk follows :) 

Statement of Conrad G. Brunk, Assistant Director of the National Inter- 
religious Service Board for Conscientious Objectors, Before the Sub- 
committee on Administrative Practice and Procedure of the Committee 
on the Judiciary, U.S. Senate 

In response to your request for our observations on the present administra- 
tive practices and policies of the Selective Service System, there are several 
concerns which we would like to submit to the Subcommittee for its con- 
sideration. The National Interreligious Service Board for Conscientious Ob- 
jectors was founded in 1940 as the National Service Board for Religious- 



160 

Objectors to represent the interests of conscientious objectors who were faced 
with the 1940 conscription law. Our agency was closely involved with the 
establishment by the Congress of the civilian work program for conscientious 
objectors opposed to both combatant and noncombatant service in the armed 
forces. Since that time we have aided conscientious objectors as a counseling 
agency, and we have been closely associated with the civilian work program 
as it has been administered by Selective Service. We publish the Guide to 
Alternative Service, which has been a source of job information for thousands 
of COs seeking alternate service positions. We have observed at close hand the 
operation of the Selective Service System through the past 30 years. 

Our observations are limited to four basic areas : A. The newly issued and 
proposed regulations governing the alternate service program and Congres- 
sional intent ; B. The new alternate service regulations and due process ; C. 
The present administration of the alternate service program ; and D. The 
Proposed Form 150 for conscientious objectors. 

A. THE NEWLY ISSUED AND PROPOSED ALTERNATE SERVICE REGULATIONS [32 CFR 
ir,(i0] PAIL TO IMPLEMENT THE DESIRE OF CONGRESS THAT THE DIRECTOR ADMIN- 
ISTER AND SUPERVISE THE ALTERNATE SERVICE PROGRAM FOR CONSCIENTIOUS 
OBJECTORS 

In 1971 Congress amended the conscientious objector provision of the draft 
law [Section 6(j)] to remove the responsibility for the civilian work program 
from local boards and to place it in the hands of the Director of Selective 
Service. The Conference Report indicates that the rationale for this amend- 
ment was that the Director was in a much better position to determine 
national needs which could best be served by conscientious objectors in alter- 
nate service [Conf. Rep. No. 92-433, p. 21]. 

NISBCO in large part welcomed this change in the law, because it promised 
an end to the wide discrepancies among states and among local boards in 
their standards of appropriate civilian work. One of the greatest inequities of 
the civilian work program in the past has been that one local board or State 
director might have a relatively liberal policy of job approval, allowing COs 
in that jurisdiction to choose from a variety of jobs, while the registrant from 
another local board or state had to face a highly restrictive approval standard 
— often a choice only from among 3 or 4 state health institutions. The attached 
Exhibit A compares the civilian work policies of the State of Missouri with 
those of New York City, as outlined in their respective bulletins to local boards. 

This policy of unequal treatment of COs is encouraged by the still effective 
Local Board Memorandum 98, which instructs local boards to "consider work 
assignments on an individual case basis so that an assignment to a particular 
job for one registrant does not bind his local board or other local boards to 
approve a similar job for another registrant." 

The effect of this policy of local discretion was to subject CO registrants to 
all forms of local prejudices and abuses which the Director of Selective Service 
was powerless to correct, because the old law gave this power to local boards. 
The Virginia registrant who has already presented his case to the Subcommit- 
tee serves as an excellent example of this this kind of abuse. Here is a man 
who, even though he has been working in jobs undeniably contributory to 
the national interest for the past five years, is facing possible prosecution 
because a local board in Virginia determined that this college graduate could 
best serve the national interest picking up litter on a road gang rather than 
locating housing for inner-city residents or teaching in an urban Headstart 
program. I personally know other conscientious objectors from the same area 
who have had jobs such as these latter ones approved with no problem. This 
case is not an isolated one in Selective Service. 

The recent amendment to the civilian work provision of the Act sought to 
end this kind of inequity in the administration of alternate service by em- 
powering the Director to establish uniform standards of appropriate work. 
However, the regulations which the Director has now implemented and pro- 
posed virtually negate this reform of the l^w by Congress, insofar as they 
delegate the responsibility given to the Director by Congress back to the local 
State directors, with very little power of review retained for the Director. 
In facts, the new regulations reserve less power of review of the alternate 
service program for the Director than did the regulations issued under the 
1967 law which had no such requirement. The new regulations do not provide 



161 

for review of decisions by State directors in alternate service matters except 
where a registrant submits his own job proposals within the 60-day period 
following his notification that he must find alternate service work. The reg- 
istrant whose proposals are denied by the State director may request a review^ 
by the Director of this denial in no more than three job proposals. But, beyond 
this initial review, the new regulations do not provide for a review of any 
other discretionary decision made by State directors. These decisions include 
the following: 

1. The decision by a State director to deny a registrant's proposal for civilian 
work as a volunteer [1660.3]. No appeal to the Director. 

2. The issuance of a mandatory work order to a job of the State director's 
own choosing (after the registrant's own proposals have been denied) is not 
reviewable by the Director [1660.7(c) & (e)]. Even the regulations issueji 
under the 1967 law demanded that the Director approve any mandatory order 
to a job not acceptable to the registrant. But under the new regulations there 
is no provision for appealing a mandatory job assignment which may be in 
violation of the official criteria. 

3. A State director's transfer order to a new job when the 1-W's first 
job terminates through no fault of his own is not reviewable by the Director 
[1660.9(c)]. Neither is the registrant given the chance to look for a job of 
his own choosing when he finds himself in this situation. 

4. The denial of a request from the registrant to transfer to another job is 
not reviewable by the Director [proposed 1660.7(g)]. 

5. The State director's denial of a request for an early release on grounds 
of hardship, medical disability, or other bona fide reasons is not reviewable 
by the Director [1660.10]. The regulations implementing the 1967 law, however, 
required that the Director make this determination. 

6. The proposed regulation 1660.9(d) allows the State director to reassign a 
1-W registrant to another job "at any time that he determines the original 
job ceases to be acceptable as alternate service. . . ." with no review of this 
decision by the Director. This regulation, proposed in the January 12 pre- 
publication, would have the effect of nullifying the one instance in which 
review by the Director of Selective Service is provided for. Under this pro- 
posal, a man could be assigned to a job which the Director had approved over 
the objections of the State director, only to be transferred to another job 
afterward by the State director, who never thought the job should have been 
approved originally. 

The effect of the new alternate service regulations will be to preserve all 
of the possibilities of inconsistency and inequality which existed under the 
old regulations, and which Congress sought to remedy by the amendment to 
Section 6(j) of the Act. What Congress sought to accomplish, the Director has 
thwarted with regulations. 

In response to our protests on this matter of review by the Director, Selec- 
tive Service officials have said that the right to a review by the Director is 
implicit in the regulations, since the Act does require the Director to supervise 
the civilian work program, and the Director would, in fact, review any appeal 
made by registrants from the decision of a State director. If Selective Service 
agrees that the statutory right to review exists, why does it fail to inform 
registrants of this right by making no reference to it in the regulations? As 
so often happens in the administration of Selective Service, only the counseled 
registrant is aware of the rights which are lawfully his, while the uncounselled 
(who is by far in the majority) remains ignorant. It is time for Selective 
Service registrants to be informed of their rights by Selective Service Forms 
and Regulations. The pre-publication requirement passed by the Congress 
should help accomplish this end, but only if Selective Service cooperates by 
spelling out substantive rights and responsibilities in pre-published materials. 

B. THE NEW ALTERNATE SERVICE REGULATIONS DO NOT PROVIDE EQUAL PROTECTION 
AND DUE PROCESS OF LAW IN SEVERAL CRUCIAL AREAS 

1. Part 1660.6 provides that although normally a conscientious objector should 
be assigned to a job which would provide a standard of living "reasonably 
comparable to the standard of living the same man would have enjoyed had 
he gone into the service," this requirement can be waived by the State director 
"when such action is deemed to be in the national interest and would speed 
the placement of registrants in alternate service." This provision allows a 



162 

man to be assigned to a job at subsistence or lower pay which is far below 
that received by servicemen in the armed forces under the new pay scale. 
At the present time, conscientious objectors are receiving mandatory work 
orders to the California Ecology Corps where they must work for less than 
the minimum wage (they are presently receiving $40.00 per month plus room 
and board). Ecology Corps 1-W workers are not given any allowances for 
support of dependents, nor are they provided with room and board. In addi- 
tion. non-CO volunteers presently working in the Ecology Corps are receiving 
$377 per month for the same work as is done by the conscientious objectors. 
This is merely one example of the possibilities which exist to use conscientious 
objectors as a source of "cheap labor." The regulations should guarantee con- 
scientious objectors the right to adequate compensation unless they volunteer 
for lower paying jobs. 

2. Although the Selective Service Law now requires that reasons for all 
decisions adverse to the claim of a registrant be given by local boards and 
appeal boards, the regulations do not afford conscientious objectors this right 
w*ith respect to any denial of his alternate service proposals made by a State 
director or the National Director. The statute requires that the Director deter- 
mine what jobs or types of jobs are appropriate for alternate service. Fairness 
requires that these criteria be spelled out so that a conscientious objector has 
some notion of the kind of job he is required to look for, and he is entitled to 
valid reasons when the proposals he submits for approval are denied. 

It should be pointed out that the criteria for appropriate civilian work out- 
lined in the regulations [1660.5 & 6] are not definitive of the kinds of jobs 
which the Director determines to be in the national interest. Part 1660.6(a) (1), 
which purports to define "national health, safety, or interest," reads in its 
entirety as follows : "The job must fulfill specifications of the law and regu- 
lations." Neither the law nor the regulations, however, contain any further 
specifications. The conscientious objector seeking appropriate alternate service 
is left to the mercy of the passing whim of a State director. Neither he nor 
the State director is given a clear standard of appropriate work, and the 
registrant will never know why the job or jobs which he submits after two 
months of searching were rejected, since the regulations entitle him to no 
Teasons whatsoever. 

The delinquency provision of the new alternate service regulations [Part 
1660.8 & 9] is a frightening prospect for any conscientious objector who en- 
counters normal on-the-job difficulties. This provision states that any 1-W 
registrant who fails to "comply with reasonable requirements of an employer 
shall be deemed to have knowingly failed or neglected to perform a duty re- 
quired of him under the Military Selective Service Act." By the terms of 
this regulation, a man is presumed to be guilty of a felony if he fails to meet 
"standards of performance demanded by the employer of his other employees 
in similar jobs." It defines as criminal a man's inability to perform certain 
tasks which others may be able to perform with ease — tasks to which he may 
have been assigned against his will. 

Under this regulation the employer becomes, in effect, a policeman and 
prosecutor. Mere incompetence, personality conflicts, or other normal employer- 
employee difficulties could lead to prosecution at the hands of overzealous or 
unsympathetic employers. A registrant who is willing and able to continue 
under the work program in another assignment should not be prosecuted. The 
delinquency sections of these regulations do not even so much as afford the 
registrant a personal hearing with the State director before a determination 
to prosecute is made. The State director makes the final decision to report the 
registrant for prosecution, and the registrant is given no right of appeal to 
the National Director from this decision. Here again, even the old regulations 
required the Director to make all prospective determinations of 1-W reg- 
istrants. This regulation should be revised to encourage the working oiit of 
on-the-job problems short of resort to criminal prosecution. In any event. 
Selective Service needs to articulate the standards of performance for con- 
scientious objectors more clearly. 

Just recently the Eighth Circuit Court of Appeals reversed the conviction 
of a 1-W registrant precisely on these grounds. The court said, "If the Selec- 
tive Service intends to prosecute young men for failure to perform their 
obligation to perform civilian service, we think, in light of due process re- 
quirements, the Selective Service System must adopt well defined administra- 
tive rules and regulations which articulate the standards of required perform- 



163 

-ance and provide for appropriate notice of violations of those standards." 
[U.S. v. Cook, 8 Cir. July, 1971]. This case involves one of the most flagrant 
miscarriages of justice our organization has encountered in the alternate serv- 
ice program. Cook was ordered to perform work after volunteering in early 
1965 at his Missouri local board. He left his job at the Missouri University 
College of Agriculture because of a congenital back disability which was ag- 
gravated by the janitorial work to which he was assigned. Despite letters from 
Doctors of Osteopathy certifying that he should not be required to perform 
anything but sedentary work, and should be subjected to weekly treatments 
and be fitted with a back brace; despite the fact that he had been refused 
employment by the Civil Service Commission to which he had applied for 
alternate service, on the grounds that he was physically unfit; and despite the 
fact that Cook was receiving total disability benefits from the John Hancock 
Insurance Co during this period, he was reported for prosecution, was con- 
victed by a jury in the district court, and has now been acquitted. Cook has 
now been held in Class 1-W for nearly 7 years, and now that he has been 
acquitted, the Selective Service System has informed him that he must find 
work to complete his atlernate service obligation. For the past five years, 
Cook has been unable to get a job because of his pending draft status. 

C. PRESENT ADMINISTRATION OF THE ALTERNATE SERVICE PROGRAM 

In the past two years, conscientious objectors have been subjected to un- 
precedented delays and harassment from the Selective Service System in re- 
ceiving their assignments to alternate service. Last year Selective Service 
officials reported that they had accumulated a backlog of over 6,000 conscien- 
tious objectors whose numbers had been reached in the order of call, but for 
whom no jobs had been found and approved. There were several factors 
contributing to this state of affairs. One was the general employment picture 
in the country, which makes it difficult to find any job, to say nothing of a 
job which qualifies for alternate service. There was also an increase in the 
number of conscientious objector registrants during this period, although 
Selective Service reported in its February, 1971 issue of Selective Service 
News that this was only a "gradual" increase. But, the most significant factor 
in the buildup of this backlog of COs seeking work was the refusal of Selective 
Service to approve many reasonable job offers made by these registrants. An 
Illinois board recently refused to approve a job with an Elkhart, Indiana 
county school for retarded children as a teachers' aid because, in the words 
of the board, the registrant "should not be allowed to have a position that 
might influence any young Americans." * The New York Times carried a 
story on December 23, 1970, of a New York State conscientious objector who 
was not allowed to continue work as a "group parent" to 17 boys in a home 
for neglected children in Bedford-Stuyvesant because the job was less than 
50 miles from his home (it was 45 miles). 

Cases like these are no exceptions in the alternate service program. Some 
State directors do not approve jobs outside their states, and some limit ap- 
proval to state health institutions. Some do not approve any civil service 
jobs. The newly issued regulations prohibit any job which interferes with the 
competitive labor market. As a result of these restrictive and unauthorized 
policies of job approval, hundreds of conscientious objectors have had their 
job assignments delayed for over 18 months, and some have been delayed 
longer. By the time these men are finally ordered to work and complete 24 
months en the job, their lives will have been disrupted by Selective Service 
for nearly four years, rather than the two years which the law requires of 
them. 

A further reason for the delay in the assigning of these men to alternate 
service has been Selective Service's own failure to effect regulations following 
the passage of the draft bill in September. The first regulations did not be- 
come effective until December 10, 1971, and proposed changes issued in Janu- 
ary 12, 1972. still have not been made effective. In our opinion, the Selective 
Service System itself bears the responsibility for the thousands of unplaced 
conscientious objectors who continue to be held in limbo. 



* After trying for over a year to negotiate an acceptable job with Selective Service, 
with no success, this young man and his wife fled to Canada to begin a new life. They 
could no longer withstand the pressures and costs of job hunting for so many months. 



164 

To the astonishment of the conscientious objector community Selective Serv- 
ice has now chosen to alleviate this backlog of COs by ordering them to 
perform work at a time when no 1-A or 1-A-O registrants are being inducted 
into the armed forces. The attached SSS directives [Letters to All State Di- 
rectors 00-51, 00-51 (amended), 00-53, Personal Letter to State Directors of 
February 9, 1972, and Temporary Instructions 660-1 and 632-1] show that 
Selective Service has established a special order of call for 1-0 conscientious 
objectors, even though their 1-A and 1-A-O counterparts who were not in- 
ducted into the armed forces in 1971 because of the same delays, are being 
freed from the draft by entering lower priority groups. The news media have 
been announcing the Selective Service decision to cancel induction orders of 
men whose inductions were delayed or postponed, and to release almost every 
registrant in Extended Priority because there are no draft calls in the first 
quarter of 1972. But l-O conscientious objectors have been shocked to find 
notices in their mail boxes that they have 60 days to find a job for alternate 
service. This special order of call [established entirely by directives not pub- 
licly published or pre-published] seems to violate the requirement of the law 
and the regulations that 1-Os be ordered to work only "in lieu of induction" 
[Act, Sec. 6(j)] and uot "before registrants with his RSN who are classified 
1-A or 1-A-O are ordered for induction" [Reg. 1660.4(a)]. 

D. THE PROPOSED FORM 150 FOR CONSCIENTIOUS OBJECTORS 

On January 12, 1972, the Director pre-published for comment in the Federal 
Register, a proposed new form for conscientious objector claims, SSS Form 
150. This proposed Form 150, as well as the Special Form for Conscientious 
Objectors presently in use, illustrates what has always been one of the most 
discriminatory characteristics of the CO classification process. This is the 
undeniable fact that the CO exemption tends to be a privilege afforded to 
the educated, articulate, and aware registrant. At present, it is extremely 
difficult, if not well-nigh impossible, for a non-traditional moral or ethical 
objector to make a successful claim unless he is college educated. The less 
erudite individual has neither the vocabulary nor the understanding of moral 
or ethical philosophy to fit his claim into the Procrustean bed which the Form 
150 and other Selective Service directives like LBM 107 demand. 

Both the present and the proposed SSS Forms 150 were recently subjected to 
two separate readability formulas to test the reading level required to com- 
prehend the questions on these forms. This study, done by Mr. Michael C. 
Brophy and Mr. Marc Mayerhoff of the University of Wisconsin-Milwaukee, 
showed that the present Form 150 tested out to at least high school graduate 
level by one test formula (Fry formula), and to college level comprehension 
by the other (Dale-Chall formula). The recently proposed Form 150, however, 
tested out at a college graduate level by the Dale-Chall formula, and a col- 
lege level by the Fry formula. This study is attached as Exhibit C. 

The fact that the comprehension level of the proposed new form is so high 
is especially alarming in view of the fact that with the new lottery system 
and the abolition of most deferments, registrants will be faced with the draft 
at a much earlier age. and will be required to make the decision about con- 
scientious objection at an earlier age as well. As Mr. Brophy and Mr. Mayerhoff 
noted in their letter to the Deputy General Counsel of Selective Service. "It 
would appear that the authors of the proposed form operated under the bias 
that only men with the opportunity for a college education are competent to 
deal with this question [of conscientious objection to war]." 

In conclusion, we suggest that the Selective Service System has not met the 
Congressional mandate to administer the draft with procedural fairness and 
due respect for the rights of individual registrants. At a time when draft calls 
have been extremely low and even non-existent, there is little excuse for the 
apparent shoddiness with which the Selective Service policies have been written 
and implemented. In all fairness to the administrators of the System, we 
concede that a completely equitable draft is an impossible ideal. Our 30 years 
of contact with the Selective Service System at its grass roots — the individual 
persons whom it touches — has convinced us that the only fair and equitable 
draft is no draft at all. We submit these criticisms with the belief that there 
is vast room for improvement in the administration of the draft, but also to 
underscore our continuing conviction that conscription has no place in our 
society. 



165 

STATEMENT OP BELA SILARD, AMERICAN ETHICAL UNION AND 
FELLOWSHIP OE ETHICAL PACIFISTS 

Mr. Silard. Mr. Chairman, I will not read my prepared statement. 
I will simply ask for your permission to file it with supporting ma- 
terial. Particularly, I would like to file, if you will permit me, the 
published results of two studies. Each of these took me a year's re- 
search. 

One of these studies was on the invalidity of Selective Service 
rules for disrupting the lives of conscientious objectors who perform 
alternative service. Those rules were invented by General Hershey 
and are being largely continued by the present Director. In mention- 
ing examples, I think I can do better than my friend Mr. Brunk here, 
with a beautiful case known as Hackney v. Tarr. The local board, 
on the basis of those disruption rules, said : This man cannot retain 
his job with the New York Hospital where he is an inhalation 
specialist because that would not disrupt his life. The boards' ob- 
jection was that the young man's home is in New York City. 

The second study which I just recently concluded has to do with 
the same local board memorandum No. 107 which you yourself men- 
tioned today. I am not concerned here with the technical question of 
prepublication. I have been deeply concerned with the fact that the 
present Director has embarked on emasculating the Supreme Court's 
Welsh decision. In local board memorandum No. 107 he developed 
entirely illegal and invalid criteria of his own for ethical objectors. 
Although he conceded that religious, moral, and ethical objectors are 
all included, he has invented such special requirements for the moral- 
ethical objectors. Although he conceded that religious, moral, and 
ethical objectors are all included, he has invented such special re- 
quirements for the moral-ethical objector which are absolutely non- 
germane to his way of life and the manner of development of his 
beliefs. To give an example, those criteria require a showing of rigor- 
ous training, or training as rigorous as that of a traditional religion- 
ist. This is most absurd and — I am trying hard to use a generous 
term — plain silly. 

This is all I want to say by way of highlights of my prepared 
statement; except, perhaps, one thing with respect to prepublication 
that none of the other witnesses seems to have mentioned. This is: 
that the Director is bound not only by the statute ; he's also bound by 
the President's Executive order of October 12 of last year. The 
President went one step further than the statute. The statute says 
"regulations", but the President says "any rule or regulation". 

Now, this little word "rule", means something that is very im- 
portant. I have not read Mr. Ericksons letter mentioned by another 
witness, but I would think that the idea that only what the Selective 
Service chooses to call a regulation need be prepublished, and any- 
thing else, although it is substantive but is not called a regulation, 
need not be prepublished, misses the point. The question of what is 
a "rule" has been judicially resolved by the court of appeals here 
in the District in a case known as National Student Association, Inc. 
v. Hershey. The court said that it is immaterial what a directive 
is called and what it is in law; it is a rule as long as it is an au- 



166 

thoritive policy, something that the boards do obey. Therefore, any 
rule, as long as it is something that reflects on the registrant's duties 
or rights, is a rule or regulation for the purpose of mandatory pre- 
publication. I thank you, Senator; I have nothing further. 

Senator Kennedy. Very good. 

I understand you have made a life's work of this? 

Mr. Silard. In view of my age, I can't really call it a life's work 
as there was a long time when I was an engineer and a business 
manager. But, at the beginning of 1966, I retired and since then I 
have devoted all of my time and energy to these things. In my written 
statement I have identified myself as chairman of the Committee On 
Conscientious Objection And The Draft of the American Ethical 
Union. I might add that the latter is a federation of some 30 
ethical societies in this country. Some of these call themselves ethical 
culture societies, and some others ethical humanist societies. 

We have been very active, for well over a decade, on behalf of 
conscientious objectors who are in the category of less-traditional 
religionists, or are altogether nonreligious. We insisted on their 
equality with traditional religionists. Before my time of activity in 
the American Ethical Union, others there had written an amicus 
brief in the Seeger case; and many of the arguments in that brief 
were quoted with approval by the Supreme Court and used in part 
as the basis of its decision that validated nontraditional religious 
conscientious objection. 

Since then, of course, the Supreme Court's landmark decision in 
Welsh v. United States has further broadened the conscientious ob- 
jector standard so as to include, finally, the nonreligious, ethical 
and moral objectors also. Sometime thereafter, I helped write an- 
other amicus brief of the American Ethical Union — and, by the way, 
I am not a lawyer — in the Supreme Court. That was in the Gillette 
case which involved another religious objector. Our arguments for the 
supremacy of ethical conscience, in every respect as valid as that of 
religious conscience, remained undefeated, and in fact, unchallenged. 
The case was lost on other grounds, namely on the issue of selective 
objection to a particular war which the Court rejected. These in- 
volvements, and others discussed in my prepared statement, are at 
least part of the reason why I am so heated up about Dr. Tarr's 
self-made criteria for ethical objectors in his local board memoran- 
dum No. 107. 

By the way, I must mention that the Director was very friendly 
to me last November 30 when I had a private meeting with him, 
subsequent to a group meeting which we had with him on No- 
vember 17 In that private meeting which lasted 2 hours, I offered 
him all my research material, with court decisions and so on, which 
contradict his position. I was hoping that those will convince him. 
I am still waiting and hoping. 

Now, as to the much-discussed form 150 for conscientious objec- 
tors, the Director did modify his first rough draft that had in- 
cluded all of those invalid criteria of local board memorandum No. 
107. We now have a much better proposed and prepublished form 
150. Unfortunately, it still includes one very important item that the 
ethical objector just cannot live with. Under penalty of the law for 



167 

not telling the truth it is impossible for him to describe his beliefs 
in a context in which only the traditional religionist presents his 
beliefs. The form tells him to do so but he cannot; it would be 
an absurdity. 

I thank you very much, Mr. Chairman. 

(The prepared statement of Mr. Bela Silard follows:) 

Prepared Statement of Dr. Bela A. Silard of the American Ethical Union 

AND OF THE FELLOWSHIP OF ETHICAL PACIFISTS 

Mr. Chairman and members of the Committee, my name is Bela Silard. 
I represent the American Ethical Union and one of its affiliates, the Fellow- 
ship of Ethical Pacifists. The American Ethical Union is the central agency 
of what is known as the Ethical Movement, an ethical-religious organization 
whose beginnings date back to 1ST6. The number of individual Ethical Socie- 
ties which are federated in the American Ethical Union surpasses thirty by 
now. None of these individual societies nor their federation is, itself, a 
pacifist body. The Fellowship of Ethical Pacifists was founded 15 years ago 
by those of us in the larger movement who are pacifists, and all members 
of draft age are conscientious objectors. 

For a number of years I have been, first the Secretary, and then the 
Chairman of the American Ethical Union's Committee On Conscientious Ob- 
jection And The Draft, and on the Steering Committee of the Fellowship 
Of Ethical Pacifists. 

For well over a decade, we have been deeply concerned with the legal 
status of the non-traditional religious as well as the non-religious conscientious 
objectors, whether or not they be members of our organization. We have 
been engaged in almost continuous efforts to have the law so changed, to 
see it so construed by the courts, and to have it so administered by Selec- 
tive Service, that the discrimination against such objectors would come to 
an end. 

Our official resolutions, submitted in Exhibit A, repeatedly called for recog- 
nition of non-traditional and non-religious beliefs as valid bases for exemp- 
tion from military service. Our amicus brief in the famous Seeger case, Ex- 
hibit B, furnished the Supreme Court with a substantial part of the argu- 
ments for that favorable decision which has extended the coverage of the 
exemption to non-traditional religious objectors, even though the statute still 
had called for a belief in a Supreme Being. 

In 1967, our representative, like those of other religious bodies, successfully 
urged Congress to remove the statutory reference to a Supreme Being. But 
for well over a year thereafter, Selective Service ignored the change. It 
continued, in the face of many sharp protests, the use of an old form for 
conscientious objector claims, and thereby an illegal administrative require- 
ment of a belief in a Supreme Being. In the end, we did persuade General 
Hershey, and he accepted a proposal for a new Form which we prepared 
together with representatives of the Unitarian Universalist Association. This 
is the Form that has been in use ever since and is now up for revision. 

But our aim was not yet fully achieved. We persisted in our demands for 
equality of conscientious objection based on purely ethical beliefs with that 
which grows out of traditional or non-traditional religious beliefs. Finally, 
in 1970, the Supreme Court's decision in Welsh further broadened its con- 
struction of the statutory standard. It now includes, and places on equal foot- 
ing, religious, ethical, and moral objection. That landmark decision caused 
us to rejoice and to relax. 

But in retrospect, we now realize that those years of struggle were actually 
the good old days. By 1970, there was a new Selective Service Director. He 
lost no time and spared no effort to emasculate the Welsh decision by ad- 
ministrative reinterpretation of the Court's holdings and thereby to turn that 
decision into a pyrrhie victory for our cause. He issued his own "criteria" 
and instructions to the draft boards on how to deal with non-religious, ethical 
and moral objectors. While paying lip-service to the equality of religious, ethi- 
cal and moral objectors, he insists on the traditional religionists being more 
equal than others. He negates the Supreme Court's construction of the statu- 
tory language on "religious training and belief", and sets up the traditional- 



168 

ist's way of espousal of his beliefs as the very example which those who are 
less equal must follow. Thereby he seeks to exact from the moral-ethical 
objector a demonstration of such aspects of his beliefs which are utterly 
non-germane to his convictions and their development. The most glaring ex- 
ample is the Director's requirement for "training, comparable in rigor to 
the training of a traditional religious objector". But Local Board Memorandum 
No. 107, Exhibit C, in which these criteria are promulgated, contains yet 
further absurd requirements which, in their totality, round out Selective Serv- 
ice's entirely invalid image of the ethical objector. 

The havoc these developments have wrought in the administrative deter- 
mination of ethical objectors' just claims to exemption from military service 
demonstrated to us the urgent need for effective opposition to the Director's 
efforts. Extensive research into legislative history and intent as well as into 
pertinent judicial constructions produced a study just published in the Selec- 
tive Service Law Reporter Exhibit D. The results consists in a set of argu- 
ments which set to naught the Director's asserted standards. 

There was a time when the Director claimed championship of the will of 
Congress as against judicial constructions of the Supreme Court, as the basis 
for his reinterpreting the statute in his own way. At the 1970 House Armed 
Services Committee hearings he said : 

The Welsh decision of the Supreme Court is quite contrary to what the 
will of Congress was. 
But a year later, after he had suggested the inclusion of his own ideas into 
the statute, Congress rebuffed him. The 1971 Conference Report says : 

The statutory language [on the CO qualification standards] has been sub- 
jected to intense legal scrutiny and interpretation by the Supreme Court. 
Therefore, no purpose would be served by rewriting this language to in- 
vite further unnecessary litigation. 
The development of a currently proposed new Form for conscientious ob- 
jectors also demonstrates that the Selective Service System is bogged down in 
the erroneous notion that even the totally non-religious objector must formu- 
late his beliefs in a context alien to his thinking and germane only to that 
of the traditional religionist. It is yet another attempt to negate Welsh. 

And this is still not all. Faced with the new statutory requirement that 
reasons must be given by the draft boards for any denial of a claim, the 
System has developed various lists of standardized, "canned" or "boiler- 
plate" phases that the boards are told to use. These lists of "reasons" are 
resplendent with the criteria culled from the Director's self-promulgated quali- 
fication standards of LBM 107. But the State Directors have done some 
further embroidering, so that their suggested phrases truly range from the 
silly, through the malicious, to the vicious. There can be but little doubt that 
any invalid CO classification criteria employed by the System will bring 
about that very flood of litigation that Congress clearly wanted to avoid. 

Another of our deep concerns is the injustice administratively inflicted 
upon the CO who is to perform alternative civilian work. Involved here are 
official rules which cause the CO hardship for hardship's sake and disruption 
of his life purely for disruption's sake. These administratively decreed penal- 
ties go back to General Hershey's time. More than a year ago, I was able 
to document their illegality in a study published in the Columbia Survey of 
Human Rights Law, Exhibit E. 

But in spite of widespread protest, the new Regulations continue, even 
though in less offensive language, most of those invalid rules. They do so 
in the face of contrary legislative intent to be found in the 1971 Conference 
Report. The conferees made it unmistakably clear that nothing but the na- 
tional interest is to determine the assignment to work. True, the Report 
lists the hardships of the soldier's service and states that the CO may have 
to undergo hardships resembling somewhat those of a soldier. But nowhere 
did the conferees say that hardships may be inflicted on the CO for hard- 
ship's sake alone where the national interest does not require them. 

Congress authorized the Director to define employment serving the national 
health, safety, and interest, but not to promulgate restrictions of a different 
nature. 

_ Finally, the new regulatory delegation to the State Directors of the de- 
cision-making power in the area of work assignment is contrary to both the 
statute and the intent of Congress. The statute confers all power and duty 



169 

in this area to the Director and does not provide for delegation to lower 
echelons The 1971 Conference Report spells out the rationale for this in that 
only the Director is conscious of the national needs, and states that the lower 
echelons may provide the Director with their experience. The errors in these 
Regulations are the more grave as they restrict even the rights of appeal to 
the National Director to the one initial step in the processing for work as- 

In conclusion, we are placing these concerns and grievances before the Com- 
mittee in the hope that it may yet successfully exert its influence on the Selec- 
tive Service Director (as the Chairman and some of its members, in concert 
with other Senators, have already tried). The moral-ethical objector has had 
his happy day in court. And Congress has said that it is satisfied with that 
result. All that is needed now is to make the Selective Service System obey 
the law of the land. 

(Exhibits are included in Appendix.) 

Senator Kennedy. Thank you. Mr. Tatum? 

STATEMENT OF ARLO TATUM, CENTRAL COMMITTEE 
FOR CONSCIENTIOUS OBJECTORS 

Mr. Tatum. I would like, Mr. Chairman, to confine myself to just 
two points that have not been dealt with or rather, confine myself 
to those two points. 

One relates to amnesty, which our two panels did not approach. 
I am one of the 1,200 or 1,500 who was pardoned by the President 
after World War II for having been a nonreligious objector. 

One of the criteria they used was inadequate because I again re- 
fused to register in 1948 and went to prison so I can both represent 
those who have been pardoned and those who were not. 

Senator Kennedy. How long were you in prison? 

Mr. Tatum. About 18 months the first time and just over a year 
the second time. My organization, the Central Committee for Con- 
scientious Objectors, is undertaking, with the cooperation of the 
draft counseling network, a repatriation program in regard to draft 
violators in Canada. This is undertaken with the advance knowledge 
that a great many people who are in Canada violated illegal induc- 
tion orders. 

In other words, are able to return and don't know it. I had a 
friend a couple of days ago write to say that his indictment he dis- 
covered last week had been dismissed in 1970 and he had not been 
informed. We had another case where a State director had canceled 
the outstanding induction order, and this is in your State Mr. Chair- 
man, and had asked the local board to inform the registrant that 
the induction order was canceled. They didn't do so and he didn't 
find out until 3 years later that he was able to return. 

Senator Kennedy. There is no procedure now to notify the person ? 

Mr. Tatum. Well, in that last case there was. The local board 
simply refused to follow the orders of the State director. There are 
other cases where there is no request made by the State director. 

In some instances the information would need to come from the 
U.S. Attorney and in other cases from Selective Service. There are 
many other cases where the induction order is illegal but needs to be 
pointed out and we have had success in individual cases in getting 
Selective Service to cancel the induction order in getting a U.S. 
attorney to get the indictment dismissed or causing him to decline 



170 

to prosecute so that we hope that we don't have any curtailment of 
our efforts. 

Sometimes we wonder if even perhaps a majority of the draft vio- 
lators in Canada could come back if their files were examined. This 
is what we are undertaking to do for many thousands of people 
through the job counselors network, to examine their files. 

We hope, in relating to amnesty, that this will change the view 
which prevailed even to some extent in your conversation with Dr. 
Tarr this morning, that this assumption that these men are law vio- 
lators and criminals will change because in many cases the law was 
violated not by them but by Selective Service itself. 

We hope that that will sort of change and the attitude towards some 
of the men in Canada will change. 

The other subject which was discussed between Senator Hart and 
Dr. Tarr to which I would like to address myself is the one about 
which you asked me many questions in 1967 relating to selective 
objection. 

In the Supreme Court case Gillette — although many people simply 
say that selective objection need not be recognized — in point of fact 
it indicated that hundreds, if not thousands, of men who call them- 
selves selective objectors do qualify under the provisions and I feel 
that just as it is the responsibility of Selective Service to make the 
Welsh and Seeger decisions known throughout the System, it is also 
their responsibility to make the Gillette decision known throughout 
the System. 

What the Supreme Court said in effect was that a person who 
honestly didn't know what he might do in some future hypothetical 
situation might very well qualify for conscientious objector status 
and his not knowing what he would do in this hypothetical future 
situation might be simply good sense. In other words, to qualify 
for conscientious objector status the question is in the present tense. 
You say, "I am a conscientious objector." 

You do not swear that you always will be. This right to change 
your mind, this right to assess situations on the basis that they 
exist, this inability to thrust oneself into a hypothetical situation and 
swear that one would not participate in war. these are the charac- 
teristics that cause many young men to call themselves selective 
objectors and these men can qualify under Selective Service if it 
would only point this out. 

Instead, as a matter of fact, they tend to go the other way. Ac- 
cording to the Illinois State director, in giving the reason for re- 
fusing a conscientious objector's claim, which he sent to his local 
board, the director states that one evidence of uncertainty would be 
if the registrant repeatedly states that he is against the Vietnam war. 

Now, I dont know if the Illinois director says if you say you 
are in favor of the Vietnam war this means that you are a sincere 
objector or not but we all know the one issue that is in the minds 
and hearts of our men is the Vietnam war and it is going to get the 
stress in any conscientious objector's claim and to suggest that the 
importance of the war in your claim means that you are not sin- 
cerely opposed to all war is seeking to place more people in an 
excluded category than the law indicates. 



171 

I would like to see any help this subcommittee can give us in 
getting Selective Service to make this known to their local draft 
boards extended. Thank you. 

Senator Kennedy. What can you tell us about the cases that you 
have reviewed in Canada? Have you done any kind of a survey of 
these cases or any kind of a review of these cases? Are there any 
general comments you would like to make? 

' Mr. Tatum. Not at this juncture. We are talking now only about 
a few chosen cases. There have been some cases where the men 
were anxious to return and were prepared to face prosecution to 
return and they discovered the judges were preparing to give pro- 
bation subject 'to that man doing alternative service. So that you 
did have a amnesty basis although admittedly the person would 
have a felony conviction on his record and this is the kind of 
situation that is envisioned in some of the proposals in the Senate 
subcommittees. . 

But a good many men don't know whether they are indicted or 
not, for example, and at least would like to know that. They don't 
know whether their fight is with the local draft board or the U.S. 
Attorney. They don't know if a warrant is out for their arrest or 
not so that would fail to solve the basic problem of the man who 
authorizes us to examine his file. We will at least leave him better 
informed than he was before. 

Senator Kennedy. From your experience, do you think many of 
the young people will come back to the United States if this re- 
quirement of alternate service exists ? What do you gather from your 
conversations with them ? 

Or, will they decline to come back until the end of the war and under 
a general amnesty ? 

Mr. Tatum. I would say a good many of them would not come 
back unless there is amnesty in the traditional meaning of the term, 
which means no strings. 

I mean, as soon as you attach a penalty in my opinion there is no 
amnesty. 

Senator Kennedy. Do you recognize the distinction between those, 
as Senator Hart pointed out, that went to Canada and other coun- 
tries because of the fact they truly objected to war versus the ones 
that got their hands caught' in the till? At the end of World War 
II there was debate as to what kind of criteria to use that would be 
appropriate in this situation. 

Mr. Tatum. I don't know. Again, I would say that this very 
characteristic after World War II is why there was not amnesty. 
Amnesty is not granted on the merits of the position or it is not 
saying you were right in what you did. Amnesty is non judgmental 
and that is what amnesty must be in my opinion. I think very often 
I have very mixed motivations about some of the things I do and 
I don't think you can clearly differentiate to what degree conscience 
is involved. 

I think this is very difficult to ascertain but in my opinion, if the 
induction order was invalid when he went to Canada, then I would 
say why he went, the philosophy or the philosophical reasons are 
even less relevant. 



172 

I admit I would personally get a greater pleasure out of helping 
a conscientious person. 

Senator Kennedy. If he had taken a car out of the motor pool, 
for instance, do you think he ought to be included in the general 
amnesty ? 

Mr. Tatum. If he has committed an offense, there would be an- 
other charge against him to which a general amnesty wouldn't apply. 

Senator Kennedy. Is it your position for the general amnesty now 
or at the end of the war? 

Mr. Tatum. My organization doesn't have a position. I just think 
that it might be politically impossible now but I would like to see 
it now. I think the ground swell in favor of amnesty is good and I 
view all of this as groundwork for an amnesty when it becomes 
feasible and I suppose that is one of the few things in which I 
believe with Dr. Tarr that will probably when induction authority 
ceases and of course I feel the sooner the better for that as well. 

Mr. Silard. Mr. Chairman, may I add that a large number of 
these young men abroad have not committed any crime, where it is 
not a question that they have neither refused induction nor taken 
a car out of the motorpool. They are people who emigrated from 
this country before they were obligated to do anything in Selec- 
tive Service. They emigrated as young men who said we do not 
want to wait until we either have to break the law or become soldiers. 
This is a very large number of people. They went abroad, and 
most of them are in Canada, they are Canadian immigrants with 
the idea to become Canadian citizens; and others are in limbo, but 
they have not broken any law. 

Now, if somebody has not broken any law, he cannot come under 
amnesty. My organization studied the question very carefully and 
finds that this large group of people needs an entirely different 
treatment. The problem for these people who want to come home, 
and I assume that 90 percent would want to come home, the prob- 
lem of these people is very much simpler. It is the helpful adminis- 
trative handling of their re-immigration into this country and re- 
gaining of U.S. citizenship which some have renounced. I think this 
is generally overlooked. 

Since you will have 2 more days of hearings, maybe you can 
elicit more from people who know about the legal aspects of re- 
immigration and so on, to explore this further if you wish. 

Senator Kennedy. If we were to have a general amnesty now, 
would you tell me your position on this? 

Mr. Brunei. Our organization does not have a position in this. 
I personally agree very much with Mr. Tatum's position. 

Senator Kennedy. You see, we are going to eventually have to 
come out and say we will have a general amnesty at the end of the 
hostilities or we will have a general amnesty now. Now, the Presi- 
dent has attached a penalty to it but still, he states the amnesty would 
be at the end of the war with the return of the prisoners of war. 

Do you think we should have a general amnesty at that time, 
less the penalty that the President talked about, but in the meantime 
have a conditional amnesty for people who want to come back now 
if they do public service ? 



173 

I am just thinking how we can do this, that is, from a public 
policy point of view in that there is only so much we can do as a com- 
mittee. So, I am interested in the opinions of the people who are 
interested in this and who feel deeply about it. 

Mr. Tatum. I think from my point of view there is a fairly sub- 
stantial difference between tying it into the end of induction au- 
thority as opposed to tying it to the end of the war. I think Con- 
gress 



Senator Kennedy. So you would tie it to the end of induction? 

Mr. Tatum. Yes, sir. It is much more specific then. 

Mr. Silard. The induction authority does not actually end on June 
30, 1973, because as you know, section 17-C of the act provides that 
anyone who has been deferred can still be inducted at any time after 
June 30, 1973. So this remains quite possible, unless Congress repeals 
section 17-C. 

In theory the Government can go on drafting everybody who 
will be in the pipeline in mid-1973, until he turns 26 years old. 

Mr. Brtjnk. Of course, they wouldn't have to wait until the induction 
authority expires. The Selective Service System is not now inducting 
persons and won't have to induct persons from now on until the induc- 
tion authority expires. If that happened, the time would be right for a 
general amnesty. 

Senator Kennedy. I want to thank you very much for being pres- 
ent with us today. 

I think we have some valuable testimony and I want to thank all 
of you. The subcommittee will be in recess until tomorrow. 

(Mr. Tatum's prepared statement follows:) 

C.C.C.O. 

An Agency foe Military and Draft Counseling, 

Philadelphia, Pa., February 2! t , 1972. 

Statement to the Senate Subcommittee on Administrative Practice and 

Procedure 

I am Arlo Tatum, National Secretary of the Central Committee for Con- 
scientious Objectors. CCCO, an Agency for Military and Draft Counseling, 
was founded in 1948. As its head, I have devoted the last ten years of my 
was founded in 1948. As its head, I have devoted the last ten years of my 
life to draft-age men and their problems and had the pleasure of being called 
to testify before this Sub-Committee in 1967. I am editor of the Handbook for 
Conscientious Objectors, co-author of Guide to the Draft, and a contributor to 
several books and periodicals on this subject. 

I, like most draft counselors, opposed continuation of the draft last year, 
when Congress extended it to June 30, 1973. We feel that the practicality of 
its termination has since been confirmed by both the few men drafted since 
and the thousands being released from active duty up to eighteen months 
early. 

Despite this position, we are pleased with the substantial reforms incorpo- 
rated into the law on the initiative of the Senate. Most of them simply obliged 
the Selective Service System to extend procedural rights long offered by 
other administrative agencies of the Federal government but not by Selective 
Service. 

I was especially encouraged by 1) the requirement that regulations be pre- 
published in the Federal Register for 30 days before they could go into 
effect; 2) the requirement that local boards and appeal boards must provide 
reasons for turning down requests for classifications; 3) the right to wit- 
nesses at personal appearances before local boards; 4) the right to appear 
before the appeal board; 5) the shifting of responsibility for alternate service 
for conscientious objectors from often prejudiced and confused local boards 
to the Director of Selective Service. 

80-620—72 12 



174 

I am perplexed and distressed that instead of welcoming the first four of 
these reforms and seeking to give them maximum effect in the new regula- 
tions, Dr. Tarr has instead promulgated regulations which reduce their im- 
pact to the bare minimum and in my view are contrary to the will of Congress. 
Dr. Tarr has thumbed his administrative nose at Congress in general and at 
the Senate Sub-Committee on Administrative Practice and Procedure in par- 
ticular, since the Chairman of this Sub-Committee initiated most of the re- 
forms. 

Our hopes in regard to the fifth point — that the Director would institute a 
more liberal and enlightened policy in regard to alternate service for con- 
scientious objectors — have also been dashed. The Director saw fit to transfer 
his new powers to the State Directors, and promulgated regulations which 
suggest a thoroughgoing contempt for both recognized conscientious objectors 
and due process of law. 

I am not without sympathy for Dr. Tarr, who is in a unique position. He 
directs a Federal agency in which part-time untrained volunteers are charged 
with making what are sometimes literally life-or-death decisions about the 
young men obliged to obey those decisions, face prosecution, or flee the country. 
Suddenly these part-time volunteers, who have for the most part relied on 
their full-time paid civil servants actually to make decisions, are taken seri- 
ously by Congress and are obliged to state reasons for their classification 
actions and to talk with witnesses who may well be leaders of their local 
communities. Appeal boards must not only actually meet with the young men 
they have been classifying — for the most part without reading their files — 
but a majority must be present and have some idea of what they are about. 

These Congressional reforms, therefore, placed Dr. Tarr's untrained, part- 
time volunteers in an awkward position, and Dr. Tarr responded defensively. 
He reduced the period during which one can request a personal appearance 
or make an appeal by half, from 30 days to 15. It is well-known that a youth 
in this day and age does not sit quietly at his address of record awaiting 
some word from his draft board. He moves about. And our Postal Service is 
erratic. Perhaps Dr. Tarr will prepare a special Selective Service form for 
registrants abroad, reading: This is to inform you that, had you received an 
enclosed classification, within 15 days, you would have had the right to ap- 
peal. At any rate, the traditional extended time limits for registrants abroad 
have been eliminated. 

The effect, obviously, will be to cause thousands of registrants to miss the 
deadline, and thereby their right of personal appearance and appeal. I'm sure 
the part-time volunteers are grateful to Dr. Tarr. 

To establish, as the new regulations do, a mere fifteen minutes as the normal 
length for a personal appearance, drastically reduces the value of a registrant's 
new right to present up to three witnesses. That gives each witness and the 
registrant himself 3 minutes, forty-five seconds apiece, assuming the local 
board members have no questions or comments. But would it not be sensible 
to explain their stated reason to the registrant? Yes, but then there would be 
even less time for the witnesses and the registrant to persuade the board it 
had made a mistake. I wonder if the administrative hearings of the Depart- 
ment of Internal Revenue are normally fifteen minutes in length when only 
money is involved. 

I have expressed to Dr. Tarr directly my objections to his circumventing 
the Congressional requirement to pre-publish regulations by setting out else- 
where procedures one would expect to find in regulations. One example is 
the Registrant Processing Manual. 

The alternate service regulations are astonishing. For example, they em- 
power a state director to approve an assignment for alternate service and 
have the CO begin his work — then change his mind, without saying why, and 
order the CO to another job, without advance notice to either the CO or his 
employer. Not only need he give no reason for his action, but the new assign- 
ment may be anywhere and may be totally unacceptable to the CO. There is 
no administrative review of the decision and no right of apneal. 

Does Dr. Tarr see his responsibility over recognized COs as analogous to 
that of a prison warden over his prisoners? 

If my tone is angry, it is because Dr. Tarr started off well his assignment 
as Director of Selective Service. He persuaded me that he desired to bring 
greater fairness into the System and intended to do so. He set out to inform 



175 

registrants of their rights, which the System had never done before. As I 
said, he made a good start. 

Whether I was misled, or whether unknown pressures have led to a re- 
versal of his initial good intentions, I do not know. But the new regulations 
show a lack of respect both for the will of Congress and for conventional 
concepts of fairness. 

Respectfully submitted, 

Arlo Tatum. 

(Whereupon, at 5 p.m., the subcommittee recessed to reconvene at 
10 a.m., Tuesday, February 29, 1972.) 



SELECTIVE SERVICE PROCEDURES AND ADMINISTRA- 
TIVE POSSIBILITIES FOR AMNESTY 



TUESDAY, FEBRUARY 29, 1972 

U.S. Senate, 
Subcommittee on Administrative Practice and 
Procedure of the Committee on the Judiciary, 

Washington, D.G. 

The subcommittee met, pursuant to notice, at 9:40 a.m., in room 
4232, New Senate Office Building, Senator Edward M. Kennedy 
(chairman of the subcommittee) presiding. 

Present : Senators Kennedy (presiding) , Hart, and Thurmond. 

Also present : James Flug, chief counsel ; Thomas Susman, assistant 
counsel ; and Mark Schneider. 

Senator Kennedy. The subcommittee will come to order. 

The Senate Subcommittee on Administrative Practice and Proce- 
dure will explore today one of the many tragic byproducts of our 
Vietnam war policies. 

For not only have 55,000 American men been killed, not only have 
300,000 been wounded, and another 400 imprisoned in North Viet- 
nam, but we also have caused perhaps the greatest internal division 
in our own Nation in a century. 

The Nation has been wrenched apart by the war and the emo- 
tions unleashed in its wake. All of us and all of our institutions have 
felt the impact of those emotions. 

When we view the results of this war, we find no beneficiaries, we 
find only victims. 

Our first task must be to end the war, to stop the suffering, to 
cease creating new victims of our policies. 

But our second task must be to ease the pain of the victims. For 
those who have given their lives, we can only mourn and give aid 
and comfort to their families. For those who are wounded, whether 
through loss of limbs or addiction to drugs, we must be overwhelm- 
ingly generous in our dispensation of help and assistance. And for 
those veterans who return without physical marks but with the emo- 
tional torment that any Avartime experience must cause, for them 
as well we must find new ways to ease their reintegration into soci- 
ety. And for the Vietnamese, when the time comes, we must seek 
to help in the rebuilding of a land that we have helped to ravage. 
But as those things are done, there still remains one class of victims 
that we must consider. They are the convicted offenders, the exiles, 
the deserters, the men facing fugitive warrants for draft evasions, 
the men against whom indictments are pending and the men who 
have never registered. 

(177) 



178 

Today we shall explore what the Nation's policy should be toward 
them. 

And as we address this question, we must recognize that it is as 
emotional a question as the busing issue that the Senate will decide 
this afternoon. 

On every college campus, the question of amnesty is one of the 
first a political leader must answer. 

And in thousands of homes of World War II veterans, the issue 
of amnesty produces angry reactions. 

What we hope is that we can begin to provide a rational under- 
standing of the many questions that must be answered by the Na- 
tion in resolving the issue of amnesty. 

Is today the right time for amnesty to occur, or is it when the 
last soldier leaves Vietnam, or should it be on the same date that 
the draft expires? 

Do we provide the same conditions or lack of conditions to de- 
serters as we do for draft evaders? 

How do we distinguish between those who based their actions on 
strong moral convictions and those among the deserters who have 
fled for other reasons? 

These are difficult, complex and emotional issues. 

We shall look first to history to give us an understanding of 
what our own traditions have been. For 29 times since independence, 
we have offered amnesty. Less than a dozen years after the new 
Nation's Constitution was ratified. President Washington offered the 
first amnesty to those men who had participated in the 1794 Whiskey 
Insurrection. 

Between that date and the Civil War, a half-century later, seven 
more amnesties were proclaimed by American Presidents. And it is 
important to recall that in at least one of those cases in 1830, Presi- 
dent Jackson offered unconditional amnesty to deserters. 

But it was the Civil War experience that I believe presents the 
most compelling parallel to the situation today. Then, the division 
within the Nation went to the point of rebellion. The Southern 
States left the Nation and while the Supreme Court ruled that it 
was an act of rebellion, the Congress passed laws calling it treason. 
And in the aftermath of that war, many were indicted for that of- 
fense. 

But throughout the war, President Lincoln and then President An- 
drew Johnson understood that the future of the Nation would not be 
built on a permanent rupture between the people of this land. It 
was not merely a question of victor and vanquished, but rather of 
men on both sides who had followed their beliefs in what was right. 

And so, President Andrew Johnson, on Christmas Day 1868, pro- 
claimed "Unconditionally and without reservation, to all and to every 
person, who directly or indirectly, participated in the late insurrection 
or rebellion a full pardon and amnesty for the offense of treason 
against the United States. . . ." 

Clearly, it was recognized then, despite the furor which followed 
that act, that the Nation must bind up its wounds and seek to move 
forward in union, that those who had placed conscience so far above 
country that they had withdrawn from the country, should be wel- 
comed back into the country. 



179 

Then, it was an expression of strength, of the willingness of the 
Government to declare its strength by its grace and to declare its com- 
passion by its willingness to forget the penalty that the law would 
otherwise demand. 

And today we have many of the same concerns. For we too have 
had young men follow their consciences to prison and to exile. "We 
too have seen a nation divided against itself and we too must look 
to the future. 

But besides our tradition, there are other compelling reasons as 
well for an inquiry into the possibility of amnesty. 

These young men believed the war was wrong. They were willing 
to go to prison or to cut themselves off forever if necessary from 
family and friends. Those were not easy decisions. They were the 
moral decisions of principled young men whose commitment and 
consciences might offer a great deal to the Nation in the future. Our 
national reservoir of moral initiative and determination is not so 
ample that we can afford to shut them out. 

And for those of us who have condemned the war as an outrage, 
it is difficult to conceive of denying amnesty to those young men who 
saw the things we now see, but saw them sooner and who did the 
only thing they could. Faced with the dilemma of violating the 
selective service law or violating what to them were moral impera- 
tives against participating in a war they saw as evil, they chose 
prison or exile. 

What we must ask is whether the Nation wants to offer reconcilia- 
tion to a generation of young Americans, to their families and to 
their communities, whether we are strong enough to be compassion- 
ate and understanding, whether we have enough faith in our market 
place of ideas to welcome minds that have disagreed with us, 
whether our own commitment to a generation of peace is firm enough 
to include peace with our own children. 

These are the questions we will discuss today. 

And, as we do, we might well ponder the Easter sermon of the late 
Cardinal Cushine; : 



*& 



"Would it be too much to suggest that we empty out our jails of all the 
protesters — the guilty and the innocent — without judging them ; call back 
from over the border and around the world the young men who are called 
deserters, drop the cases that are still awaiting judgment on our college youth? 
Could we not do all of this in the name of life, and with life, hope . . . 
Wherever our young people, even for reasons we do not know, stand in need 
of mercy let us reach out to them. 

Our first witness this morning is Mr. Henry Steele Commager of 
Amherst College, perhaps the most distinguished historian of our 
country todaj*. He has charted a course of scholarship and wisdom 
in his books and lectures for half a century. So it gives us a great 
deal of pleasure to introduce him today. 

Senator Thurmond. Mr. Chairman, could I make a statement, too? 

Senator Kennedy. I recognize the Senator. 

Senator Thurmond. Mr. Chairman, the involvement of the United 
States in Indochina has brought and is continuing to bring mixed 
reactions from all sections of our society. To say that this war has 
been an unpopular one is indeed an understatement. 



180 

Our involvement amounted to a peak commitment of over one-half 
million men at one time. In fact, when President Nixon assumed 
office there were over 550,000 men in South Vietnam. The President 
has courageously reduced our manpower involvement to an expected 
69,000 as of May 1 while at the same time has maintained the in- 
tegrity of this country and of South Vietnam. He has revealed a 
peace proposal which would totally end our military participation 
while at the same time bring home prisoners of war being held by 
the North Vietnamese. 

This country made the decision to preserve the freedom of South 
Vietnam, a country which, except for our assistance, would have 
long since been crumbled by Communist aggression. Future his- 
torians will debate the wisdom of our involvement in Indochina and 
the wisdom of our strategy once we became engaged. The fact is we 
did become involved just as surely as we became involved in World 
War I, World War II, and in the Korean Conflict. As of September 
30, 1970, over 2.5 million men had served in Vietnam. This figure 
does not include the millions who have served in a supporting role 
here and abroad. 

Throughout the history of our Nation we have drafted men into 
the Armed Forces. Likewise, throughout our history there have been 
those who have evaded serving their country one way or the other. 
We should be proud that the vast majority of Americans who have 
been called to serve in the military have served honorably and with 
exceptional distinction. 

Regretfully, however, as with regulations and requirements in 
other areas of our society, there have been and will be those who 
fail to serve when they are drafted, and there are those who have 
deserted after they have entered the military. 

Lawlessness and disregard for the law is one of the serious ills 
of our society. Strict enforcement of the law and just punishment 
of offenders is absolutely necessary and is demanded under our con- 
stitutional system. We should apply the same system of justice to 
those who break the law requiring military service as we apply it 
to those who break any other law. 

In my opinion, which I feel is shared by many others, there is no 
greater service a man can render his country than to serve in the 
Armed Forces. Equally important is the service we all can render by 
showing respect for the law. This service demands that those who 
disobey the law be appropriately punished. 

The law provides that draft evaders and those who desert from 
the Armed Forces be appropriately punished. Retrospective politics 
of onr involvement in Vietnam should not alter this. 

Many men who served in Vietnam differed with our Government's 
decision to send them there. Many of them were wounded, some are 
maimed for life. Many were killed. Some are being held as captives 
by the North Vietnamese. In the face of these sacrifices how can we 
possibly consider an amnesty for those who took the unlawful way 
out by evading the draft or by deserting? The possibility of admin- 
istrative amnesty should not even be considered until we have 
brought home all our men from combat zones and from prisoner-of- 
war camps. Then the primary problem will be to mete out justice 



181 

to those who violated draft and desertion laws. In my judgment 
there will be very few who, through unusual extenuating circum- 
stances, might qualify for amnesty. 

As I stated yesterday, those who were conscientious objectors did 
not have to go to Canada, Sweden, or some other country. We have 
provisions in our law to arrange for special consideration for this 
type of person. So those who went either went erroneously when it 
was not necessary if they were conscientious objectors or they are 
not willing to fight for their country. In my judgment, a man must 
be willing to fight for his country in time of war. I have little 
patience for those who are not willing to do so. It is very unfair 
for those who are forced to go and allow others who are not willing 
to serve to be excused and then grant an amnesty. 

Yesterday, the distinguished chairman, it seems, related the "War 
Between the States to this situation and insinuated, if not called, 
those who fought on the Southern side traitors. If I am incorrect, 
he can correct the record. He later said that some called them traitors, 
but I believe the record itself, in his first statement, referred to them 
as traitors. 

Now, again, I want to say today that no section of this country 
is more patriotic than the South. In World War I, my State had. I 
believe, more Congressional Medal of Honor men than any other 
State in proportion to its size. The South has always fought for 
America. The South did have its differences back when the South 
seceded from the Union on December 20, 1860, I believe that the first 
ordinance of secession was approved and then the rest of the South 
withdrew. 

As I stated yesterday, they were following what they considered 
constitutional rights, the right of a State, the right of the State to 
join the Union, which it did. It did not have to join the Union. And 
they felt when they joined voluntarily, they had a right to secede 
voluntarily, and that is exactly what they did. 

But I want to say this, that they did not just secede and run off 
to some other country; they seceded and fought for what they be- 
lieved in. That is far different from today. 

These men who run to Canada and Sweden and other places have 
fought for neither side. They have just evaded military service. 
There was an honest difference in men who were willing to fight 
for and did fight for it back during the War Between the States. I 
cannot imagine anybody today calling those people traitors. It is 
an outrage. And I think anyone who called those people traitors 
are cowards themselves and I do not care who it applies to. I am 
convinced that those people were just as patriotic and loved their 
countries just as much and loved America just as much. And no 
people of this country underwent the sacrifices they did after that 
war. They were under military rule for 10 years. They suffered en- 
during hardships. Yet they supported this country and supported 
its government and provided fighting men in every war this country 
has fought, And today, the South, I think, is the heart, of patriotism. 
I do not know what this country would do today if it were not for 
the South. 

The South is doing more today, I think, to hold this country to- 



182 

gether than any other section of this country. I think they are the 
most loyal people; they believe in the constitution to a great extent 
and they stand for the principles that made this country great. And 
when anyone refers to those who fought on the Southern side as 
traitors, I think they are indeed exaggerating the situation and they 
are making false statements and they simply do not know history. 

I want to make this statement to clear up what was said yesterday 
and the record will speak for itself. The reporter took the record 
and that will speak for itself and others who heard the record — that 
will speak for itself. 

But I want to be perfectly clear on this point that there is no rela- 
tion to the war between the South and the North that began in 1861, or 
maybe actually in 1860, and the present situation. Today, these men 
who ran off to Canada and Sweden and other places were not willing 
to fight for their country. And I repeat, if they were conscientious ob- 
jectors, they had a remedy here at home. Why did they go ? I think the 
public can answer that question. 

Senator Kennedy. In the meantime, we will hear from Mr. Henry 
Steele Commager. Perhaps he can add insight into the history of 
this situation. 

STATEMENT OF HENRY STEELE COMMAGER, PROFESSOR OF 
HISTORY, AMHERST UNIVERSITY 

Mr. Commager. Gentlemen, traditionally, it is the Executive that 
has taken the initiative in granting amnesty, but recent Executives 
have displayed less interest in amnesty than was customary in the 
19th century: thus there was no amnesty after the Korean war and 
has been none so far in this war. It is therefore reassuring to see the 
Congress take the initiative in this matter so fraught with impor- 
tance to the harmony of society and to the sense of justice. The 
American people should be grateful to Senator Taft for raising this 
issue in practical form, and for proposing a solution, even if partial 
and in some respects inadequate. We should note at once that Sen- 
ator Taft's proposal does not embrace military deserters. As I think 
desertion and draft evasion are inextricably part of the same pat- 
tern and the same problem, what I have to say this morning will 
apply to both categories of offenders. 

We do not have, and, in the circumstances we cannot have, accu- 
rate statistics of desertion and draft evasion for the past 7 years. 
It seems probable that desertion has been higher in the war in South- 
east Asia than in any war in which we have ever been involved with 
the possible exception of the Civil War, desertion in the North was 
11%; in the South 10%; the comparison is faulty. However, in the 
North it was possible to buy substitutes. Without that, it would have 
been greater. In 1970 the desertion rate in Vietnam was 52 per 
thousand — twice the rate, by the way, of the Korean war; up to 
September 1971 it was 73.5 per thousand; many of these deserters 
were subsequently returned to military control. As for draft evaders 
estimates run from fifty to one hundred thousand, but as many 
potential draftees took cover before being formally inducted, these 
figures are almost meaningless. This high incidence of desertion and 



183 

draft evasion is not, I submit, a commentary on the American char- 
acter, but a commentary on the war; after all there was neither 
large-scale desertion nor draft evasion in World War II, and the 
national character does not change in a single generation. What is 
by now inescapably clear is that the Vietnam war is regarded by 
substantial elements of our population — particularly the young — as 
unnecessary in inception, immoral in conduct, and futile inobjective; 
what is clear, too, is that more than any war since that of 1861-65 
it has caused deep division and bitter dissension in our society. The 
task which confronts us then is not dissimilar to that which con- 
fronted Presidents Lincoln and Johnson, not merely that of ending 
the conflict in Asia. It is that of ending the conflict at home, of 
healing the wounds of war in our own society, and of restoring — it 
is a Thomas Jefferson phrase — "restoring to social intercourse that 
harmony and affection without which liberty and even life itself 
are but dreary things." 

The term, and the concept, of amnesty is very old. The word itself 
is Greek — amnestia — means forgetfulness, oblivion, the erasing from 
memory. 1 

I cite this not out of pedantry but because it illuminates the prob- 
lem that the distinguished Senator from Ohio has raised: whether 
there can in fact be conditional amnesty? Can there be partial 
oblivion, can there be a qualified erasing from the memory? Can it 
be supposed that draft evaders who take advantage of the amnesty 
proposed by Senator Taft — that of working out and presumably- 
expiating their sins for a period up to 3 years— will during these 
years of forced service forget or erase from their memory this whole 
unhappy chapter of their history and ours? Can it be supposed that 
after the guns have fallen silent and the bombs have ceased to rain 
down on the stricken lands of Vietnam and Laos, deserters who are 
tried and punished for their military offense, will be able to put the 
war out of their minds? And indeed can it be supposed that while 
these unfortunates are doing penance in various ways, the Nation 
will be able to forget, or to consign to oblivion, the deep moral 
differences which animated those who fled their country or their 
regiments rather than violate their consciences ? If it is forgetfulness 
and oblivion we want, or even reconciliation and harmony, we shall 
not achieve it by this labyrinthine route. 

The question of amnesty and/or pardon to draft evaders and de- 
serters is not really a legal or constitutional question. There is no 
doubt about the constitutional right of the President to grant pardon 
and to proclaim amnesty, and none about Congressional right to 
enact amnesty, nor is there any constitutional obligation in either 
President or Congress to take any action at all. The argument for 
amnesty is threefold: historical, practical, and ethical. It is to the 
interesting question of experience, the illuminating question of ex- 
pedience, and the elevated question of moral obligation that we 
should address ourselves. 

We may dispose of the history summarily, though one chapter of 

1 There is the highest judicial sanction for this definition : "Amnesty Is the abolition 
and forgetfulness of the offense ; pardon is forgiveness," said the Supreme Court, Knote 
v. U.S., 95 U.S. 149. 



184 

it, despite what the distinguished Senator from South Carolina has 
said, is both relevant and illuminating. 

The American Revolution — the first occasion for this problem- 
was a civil war. Those who supported the Crown — John Adams 
estimated them at one-third the total population — were exposed to 
the obloquy and persecution that attends most civil wars. They suf- 
fered deprivation of position, confiscation of property, physical vio- 
lence, and exile. During and after the War some 80,000 Loyalists fled 
the country, mostly to Canada. A few returned, but public opinion, 
and legislation, was so implacably hostile to loyalists that the vast 
majority preferred exile. Thus for want of magnanimity, and of 
wisdom the new Nation — a nation which needed all the resources 
which it could obtain — lost a substantial and valuable segment of 
its population, established in Canada a body of United Empire 
Loyalists, whose unifying principle was hostility to the United 
States, and earned an international reputation for harshness and 
rancour. Desertion was, as we all know, endemic in Washington's 
Army— it all but drained away the army at Valley Forge— but after 
the war was over no effort was made to punish war-time deserters. 
As President, Washington established the precedent of generosity 
for those guilty — or allegedly guilty — of insurrection: as Senator 
Kennedy has reminded us, he proclaimed amnesty for participants 
of the Whiskey Rebellion, observing, in words that are relevant to- 
day : "Though" I shall always think it a sacred duty to exercise with 
firmness and energy the constitutional powers with which I am 
vested, vet my personal feeling is to mingle in the operation of the 
Government every degree of moderation and tenderness which jus- 
tice, dignity and "safety may permit." (I Richardson, 266). 

John Adams took the same attitude toward the so-called Fries 
Rebellion of 1799, granting "a full, free and absolute pardon to all 
and every person concerned in said insurrection." Jefferson in 1807 
pardoned all deserters from the Army of the United States who re- 
turned to their units within 4 months; Madison issued no less than 
three proclamations of the same nature, covering deserters in the 
War of 1812. President Jackson's Amnesty of 12 June 1830 had an 
interesting twist to it ; he pardoned all deserters from the Army pro- 
vided they would never again serve in the Armed Fores of the United 
States. 

It is the Civil War which provides us with the best analogies 
and, I think, the best models for our own time. Desertion from both 
Union and Confederate armies ran to roughly 10 percent— rather 
above than below that figure. Draft evasion was widespread and 
flagrant, complicated in the North by what was called bounty-jump- 
ing, that is multiple enlistments and desertions to collect bounties. 
While neither draft dodgers nor deserters constituted a danger in 
the North, they did in the South : it was said— on what authority is 
not clear— that there were more deserters and draft evaders in the 
mountains of the Carolinas, in 1864, than there were soldiers in Lee's 
armv. Appomattox put a period to the problem in the South; no 
action was taken against either deserters or draft evaders after the 
end of the war in the North. 

What is illuminating, however, is the attitude of Presidents Lin- 



185 

coin and Johnson towards Southerners who had engaged in rebellion 
and were, technically, guilty of treason. The technical guilt there 
cannot be doubted, whatever the moral guilt. The Constitution, as 
you gentlemen know, defines treason — it is the only crime that is 
defined in the Constitution — as bearing arms against the United 
States. 

Should "rebels" be brought to justice, and punished? Should States 
that had joined the Confederacy be punished? Lincoln's position was 
clear and consistent. During the war, he issued a series of amnesty 
proclamations designed to bring Confederates back into allegiance 
and to get government in operation in the South. He had been un- 
willing to "let the erring sisters go in peace" — as Horace Greeley 
recommended — but he was ready to let them return in peace. Con- 
gressional radicals wanted to punish the South for its treason by 
excluding Southern States from full membership in the Union: in 
the end, as we know, they succeeded at least in part in their vindic- 
tive policy. Lincoln would have none of this; indeed he regarded 
the question of the legal status of the Confederate States as "a 
pernicious abstraction." "Finding themselves safely at home," he 
said — an observation that might be said of our draft evaders who 
after all did not bear arms against the United States — "it would be 
utterly immaterial whether they had ever been abroad." And how 
fascinating Gideon Welles's recollection of that last Cabinet meeting 
which Lincoln attended which discussed the question of capturing 
Confederate leaders and bringing them to trial. "I hope there will 
be no persecutions," said Lincoln, "no bloody work after the war is 
over. No one need expect me to take any part in hanging or killing 
those men, even the worst of them. . . . Frighten them out of the 
country, open the gates, let down the bars, scare them off" and — as 
"Welles tells us, opening his hands as if scaring sheep off — "enough 
lives have been sacrificed." Enough lives have been sacrificed ! 

Who can doubt, now, that Lincoln's policy of magnanimity was 
wiser and more far-sighted than the radical policy of punishment? 
Even the radicals were not vindictive by modern standards. How 
gratifying it is after all for the United States to recall that the 
United States put down the greatest rebellion of the 19th century, 
without imposing on the guilty any formal punishment. Not one 
leader of the defeated rebels was executed, not one was brought 
to trial for treason. There were no mass arrests, no punishment even 
of those officers of the U.S. Army and Navy who had taken service 
in the Confederacy. No soldier who wore the gray was required to 
expiate his treason, or his mistake, by doing special service, none 
was deprived of his property — except property in slaves — or forced 
into exile by governmental policy. What other great nation, chal- 
lenged by rebellion, can show so proud a record? Not England in 
the 17th century, not France in the 18th, not Spain or Russia or 
China or Cuba or any other in the 20th. 

We can dispose with lamentable brevity of the record in the pres- 
ent century, for it is a brief record. There was no general amnesty 
for draftevaders or deserters after World War I. Indeed those guilty 
of violating the espionage and sedition acts — among them Eugene 
Debs — languished in jail while President Wilson was in the White 



186 

House. That dangerous radical, Warren G. Harding, gave him a 
pardon, and his equally radical successor, Calvin Coolidge, released 
most of those who were still in jail when he came to the Presidency. 
No major war in which we have engaged saw fewer desertions or 
draft evasions than World War II — a war which almost all Ameri- 
cans thought necessary and just. Yet when Vice President Truman 
came to the Presidency, in 1945, there were some 15,000 draft evaders 
and other offenders against the military law in Federal custody. 
Truman appointed a committee, headed by Justice Owen Roberts, to 
advise him on what action he should take. The committee advised 
against a general amnesty and recommended individual considera- 
tion of each case. This advice was accepted; only one-tenth of those 
in jail were actually released, however — not a very gratifying result. 

One final observation and we are finished with our historical re- 
capitulation. It is not without interest that confronted with acts of 
hostility against the Nation incomparably more serious than those 
alleged against our deserters or draft evaders, France, Norway, 
Belgium, the Netherlands, and Japan all granted partial amnesty 
to those very large segments of their populations who had engaged 
in disloyal activities. It is perhaps even more relevant to recall that 
that great soldier who was also a great statesman and patriot, Gen- 
eral de Gaulle, proclaimed a general amnesty to the overwhelming 
majority of those who had resisted — even by arms — his policy during 
the Algerian crisis. 

In all this we are reminded of what that other great soldier and 
statesman, Winston Churchill, said, "There must be a blessed act 
of oblivion." 

More important than historical precedents, however illuminating, 
are considerations of wisdom and of morality. Here we come, I 
think, to the heart of the matter. A nation does not adopt important 
policies — policies affecting the lives of hundreds of thousands of its 
young people, and affecting the whole fabric of the social and the 
moral order — out of petulance, or vindictiveness or vengeance. It 
bases its judgment rather on the interests of the Commonwealth. Nor 
do statesmen indulge in what Lincoln called pernicious abstractions — 
abstractions about whether magnanimity to some will somehow be 
unfair to others: after all who knows what is ultimately just, or 
what will ultimately satisfy the complex passions of a vast and 
heterogeneous society ? We should make our decisions on the question 
— complex enough to be sure — of what appears to be to the long- 
range interests of the Nation. 

When we consider the problem of amnesty in this light, there are 
a number of considerations which clamor for our attention: (1) 
There is the consideration that those who deserted either the draft 
or the Army, were not young men indulging themselves in reckless 
irresponsibility, or confessing cowardice. They were, and are — we 
must concede this is the face of a resistance so massive — it is con- 
ceded, too, by the Supreme Court of the United States — they were 
acting quite sincerely on conscience and principle. After all this is 
the position that wise and objective judges of the Supreme Court 
accepted in both the notable conscientious objectors cases— Seeqer v. 
United States and Welsh v. United States. We must put aside for 



187 

the time being the question whether the deserter-evaders are right 
in their convictions, or whether those who oppose them are more 
nearly right. What we cannot deny is that the vast majority of them 
acted on principles that they felt — what I think the majority of the 
American people now feel — that the war in which they were re- 
quired to participate was misguided and immoral; they rejected it 
therefore on moral grounds. This is a position the American people 
have always respected- — not only in questions of military service, 
but in other large issues of public police': the obligation to return 
fugitive slaves to their masters, for example which was widely dis- 
regarded throughout the North. 

It is a principle, too, we have respected in others. It is not the 
"redcoats" who laid waste the countryside in the American Revolu- 
tion whom we remember and admire because they obeyed the law, 
but those back in Britain who thought the war on the Colonies a 
wicked war and refused to have any part in it — Jeffery Lord Am- 
herst, after whom my college is named, the highest ranking officer 
in the British Army, who refused to resume active service against 
the Americans; Lord Admiral Keppel, the highest ranking officer 
in the British Navy, who refused to serve against the Americans, 
Lord Frederick Cavendish who sat the war out; the Earl of Effing- 
ham, who turned in his commission rather than fight in America — 
and was thanked for this by the corporations of London and Dublin. 
(2) Nor can we overlook another consideration, that in many ways 
the deserters and draft avoiders of today are like the "premature 
antifascists" of the 1930's, who suffered persecution during the 
Joseph McCarthy era because they had fought fascism abroad be- 
fore the country caught up with them. May we not say that the 
majority of those who have deserted or gone underground merely 
took "prematurely" the position which the majority of Americans 
now take; more, that they took prematurely the position which the 
Government itself now takes— that the war was and is a mistake, 
that we should extricate ourselves from it as expeditiously as pos- 
sible, and that the whole enterprise of fighting a war designed pri- 
marily to contain China looks faintly absurd at a time when our 
President has gone to China to arrange and prosper closer relations 
with her? May not the deserters and evaders claim that their error 
is to have been ahead of public opinion and of Government policy, 
and that it should be easy to forgive this error? (3) There is a third 
consideration which affects a substantial number of those it is now 
designed to deal with by amnesty — a group who may be designated 
premature moral objectors. For as all of you know, the legal inter- 
pretation of what constitutes acceptable objection on grounds of 
conscience has changed radically. That change began as early as 
1965, in the notable case of the United States v. Seeger (380 U.S. 
163), which extended exemption from the draft to those who em- 
braced a "belief in and devotion to goodness and virtue for their 
own sakes, and a religious faith in a purely ethical creed." Speaking 
through Mr. Justice Clark, the Court held that Seeger was entitled 
to exemption "because he decried the tremendous spiritual price man 
must pay for his willingness to destroy human life." But in 1965 the 
Court still required, as a legal basis for exemption, some belief, 



188 

however vague or remote, in a Supreme Being. But by 1970 the 
Court was prepared to accept moral and ethical scruples against the 
war as meeting the requirements which the Congress had set for 
exemption on account of conscience. That requirement, wrote Justice 
Black — from your section of the country, Senator Thurmond — that 
requirement "exempts from military service all those whose con- 
sciences, spurred by deeply held moral, ethical or religious beliefs, 
would give them no rest or peace if they allowed themselves to be- 
come a part of an instrument of war." 398 U.S. 333, at 344. 

Clearly if those whose opposition to war is based not on formal 
religious beliefs but on moral and ethical principles, are now 
exempted from service, then those with the same beliefs who were 
denied conscientious objector exemption in the past have an almost 
irresistible claim on us for pardon or amnesty. 

There are to be sure some serious objections to be met — not the 
objections inspired by passion, by prejudice, by vindictiveness; these 
must be left to that religion which so many feel the deserters and 
evaders have flouted, or to the healing force of time — but objections 
based on considerations of public policy. It is alleged, for example, 
that a sweeping amnesty would somehow lower the morale of our 
fighting forces. Quite aside from the observation that it is difficult 
to see how that morale could be any lower than it now appears to 
be — it is proper to say that there seems to be no objective evidence 
whatever to support this argument. It does not appear that amnesty 
worked this way in the past, in the relatively few instances where it 
was applied while the war was still going on. Nor is it irrelevant to 
note, for what it is worth, that there is strong support for amnesty 
from a number of veterans' organizations today. 

But would a sweeping amnesty make it more difficult for the 
United States to recruit or draft an army for another war as Mr. 
Tarr observed yesterday. Such speculations are what Lincoln called 
pernicious abstractions: certainly Lincoln's use of amnesty did not 
appear to have any effect whatever in later wars. The notion that 30 
years later, people remember these things and act on them seems to 
me a figment of imagination. 

There is a further point here. Is there not something to be said 
for putting Government on notice, as it were, that if it plunges the 
Nation into another war like the Vietnam — it will once again be in 
for trouble? After all governments, like individuals, must learn by 
their mistakes, and though the process of teaching Government not 
to make mistakes is a very arduous one, often hard on those who 
undertake it, it is also often very useful. Southern States no longer 
threaten to secede ; Congress no longer threatens to establish military 
government in States that do not behave themselves; whatever we 
may think about the dangers of alcoholism, we no longer try what 
was once called the noble experiment of prohibition. If the war in 
Southeast Asia is a mistake from which we are even now extricating 
ourselves, is it just that we should punish those who — at whatever 
cost — helped alert us to and dramatize that mistake? 

For almost a decade now our Nation has been sorely afflicted. The 
material wounds are not as grievous as those inflicted by the Civil 
War — not for Americans anyway — but the psychological and moral 



189 

wounds are deeper, and more pervasive. Turn and twist it as we 
may. we come back always to the rootcause of our malaise, the war. 
If we are to restore harmony to our society and unity to our Na- 
tion we should put aside all vindictiveness, all inclination for pun- 
ishment, all attempts to cast a balance of patriotism or of sacrifice — 
a task to which no mortal is competent — as unworthy a great nation. 
Let us recall rather Lincoln's admonition to judge not that we be 
not judged, and with malice towards none, with charity for all, 
strive on to bind up the Nation's wounds. 

Senator Kennedy. Thank you very much, Mr. Commager. That 
is an enormously helpful comment and statement. I think the benefit 
of insight of history is of great value to all of us on this committee 
and I think to Americans generally. I want to express my apprecia- 
tion for your making it. 

Let me ask if I could what your general view of amnesty today 
would be? Do you favor an unconditional amnesty today or do you 
favor an unconditional amnesty at the end of hostilities or when 
the American prisoners of war return? Do you favor conditional 
amnesty prior to the time that you see an end of hostilities? Given 
this kind of philosophical background, where do you come out? 

Mr. Commager. As I have said, I do not think conditional amnesty 
is meaningful. It is not forgetfulness, it is not oblivion, it is not the 
things our society needs. I therefore favor total amnesty. If we are 
to wait until the end of hostilities, we may have to wait generally 
until those who might otherwise profit from amnesty perish of old 
age. 

Quite aside from that, I think our President has given clear indi- 
cation that he proposes to end the war as fast as possible, to with- 
draw as many of our ground troops from Vietnam as possible. While 
overtures to China indicate a real desire for a new policy in the 
Pacific and in Asia. In the circumstances, it seems to me that an 
unconditional amnesty now would be in harmony with the presiden- 
tial policy and with that policy which I believe most Americans now 
subscribe to. 

Senator Kexxedt. Let me just, if I could, make a point that I 
think was suggested in Mr. Tarrs testimony yesterday. That would 
be if you provided an unconditional amnesty today while you have 
a continuation of the draft, would it not be possible for a young 
person who receives a draft notice just to go across to Canada, pick 
up his unconditional amnesty, and come back into the United States 
and be free of any kind of military obligation. 

Mr. Commager. It might indeed, sir. I believe, however, the draft 
has been suspended for 3 months. If we are indeed going to reduce 
our forces markedly in the Far East, reduce them even in Taiwan, 
as we now learn, and probably in Europe, as we have greatly in- 
creased the pay-scale for military service, I think it highly probable 
we shall go on a Volunteer Army basis. I hope so in any event and I 
think almost anything that could contribute to that "would be de- 
sirable. 

Aside from that, however, I am deeply suspicious of hypothetical 
reasoning — what Mr. Tarr, I believe, indulged in. President Jeffer- 
son once said, "shake not your raw head and bloody bones at me." 

80-G20— 72 13 



190 

Do not conjure up all these dreadful things that are going to happen 
if something else happens. They usually do not and T do not believe 
that our society will unravel, that the military would come apart, 
or even that volunteers would cease to volunteer, or that all draftees 
would cease to respond if amnesty were to be promised. 

Senator Kennedy. As 1 understand from your comment, you 
would grant the amnesty to those who have deeply felt moral, ethi- 
cal, or religious reservations about the Avar and your amnesty would 
not apply just in a broad sense to just any evader or deserter despite 
what motivated him to leave this country? 

Mr. Commager. I do not think there is any right answer to that 
question Mr. Senator: that is true of most hard questions. If what 
we want to do is achieve a kind of abstract justice so that everyone 
who is offended gets his punishment and those who have not offended 
are excused from punishment, the proposal if it is indeed a proposal, 
that you phrased is of course reasonable. Tf the objective is. however. 
to restore harmony, to wipe out dissension, to reduce those hatreds 
and antagonisms that are tearing our society about, I think we can- 
not pick and choose in this fashion. I think we must do what Mr. Lin- 
coln was prepared to do, what Mr. Jefferson and so many other Presi- 
dents were prepared to do- — to wipe the slate clean and start over with- 
out looking too closely into the degree of sin and of fault. This seems 
to be the religious, the deeply Christian view of morality : the view that 
parents take with children, that husband and wives take, that is re- 
quired not only by some abstract virtue but by the desire to achieve the 
end you want, which is peace, and harmony, not some abstractual judg- 
ment of degrees of inequity and degrees of punishment. 

Senator Kennedy. Well, the example I was thinking of was sug- 
gested in Senator Hart's example yesterday of those that might 
have fled and gone to Canada because they had their hand in the 
companv headquarters tilh so to speak. 

Mr. Commager. Quite right. Whether it is worth while doing what 
the Roberts Commission recommended for 15.000 people — that is. 
taking every case on an individual basis — or not is very hard to say. 
My guess is that that would cause more trouble than it would be 
worth. Obviously, no one is in favor of giving arrmesty to people 
who did not plead conscience or who did not indeed have conscience. 
But how one discovers these and how one decides between genuine 
and not genuine is another matter. Certainly no amnesty should be 
given those who are charged with or guilty of other offenses. 

Senator Kennedy. Would you suggest, then, that perhaps a way 
of proceeding would be the granting of amnesty and then the burden 
for some kind of prosecution would rest either with the army or the 
Justice Department to show that there had been other kinds of crimes 
or offenses? 

Mr. Commager. Oh. yes, I imagine there is a record of these, and 
perhaps those who fled are already under indictment of some kind. 
And I think to go at the case by case with — the 70 to 100 thousand 
who at one time or another deserted — and equal numbers who fled 
may commit us to more than we are prepared to carry through. 

Senator Thurmond. Mr. Chairman, the Judiciary Committee is 



191 

having a full committee meeting at 10 :30, so I will have to leave at this 
time. 

Senator Kennedy. Could I just ask one question before yielding 
to Senator Hart \ 

Could you tell us as a historian what kind of country we would 
have or what the atmosphere would be within this Nation if we 
did not take an understanding and a tolerant and a merciful view 
of these young people who left the country as a matter of deep con- 
science? What can you say about the kind of climate and atmosphere 
that we might find ourselves in in the United States? 

Mr. Commager. I do not know that a historian has any better 
credentials on that kind of prediction than a Senator has. I am 
inclined to think, however, on the basis of the experience in the 
American States after the Revolution, on the experience with rad- 
ical reconstruction of the South, and of other countries which have 
taken vengeance on those who deserted or were guilty of treason. 
that the consequences would be deeply disturbing and that we would 
later deeply regret them. 1 fear they would be consequences which 
would leave a stain on our history. It is always better to forgive 
than to take vengeance and our society is. as all of us know, now 
deeply torn. It has been torn for 10 years. It is torn not only on the 
issue of the war. but on the issue of race, which closely connects with 
the war. It has torn hostilities within our great cities. We should be 
ready to pay any reasonable price to restore harmony, to win once 
again the confidence of the American people in the wisdom and the 
generosity of their government, to reknit a society which is in danger 
of unravelling. I do not think granting amnesty to all deserters and 
draft evaders alike, however unfair it may seem to be to some, is 
too high a price to pay. 

With respect to this feeling that comes up again and again, that 
some make a great sacrifice and others do not. I think there are 
two observations. Just obviously going underground, leaving home, 
leaving country, giving up work, living from hand to mouth, won- 
dering what will happen to them, is itself a great price to pay for 
dissent. And, second. I need not remind you, Senator Kennedy, that 
the parable of the workers in the vineyard is not wholly irrelevant, 
that those who came in the last hour and received the same compen- 
sation as those who came in the first. Perhaps we would not go too 
far astray in adopting that philosophy in this situation. 
Senator Kennedy. Senator Hart? 

Senator Hart. Mr. Chairman. I must leave to attend that committee 
meeting. I just wanted to thank Professor Commager for helping all — 
at least helping me shake down some of these what you would suggest 
are almost footnote kind of questions — how do you accept, when do you 
do it. I want to thank you very much for suggesting that there are not 
any wholly satisfactory answers to those things. 

Mr. Commager. There are not, nor to any problems in life, I fear. 
Senator Hart. Parenthetically. I still do not understand that para- 
ble you mentioned. I do not need it to persuade me to amnesty. I 
have listened to that in a different setting than you, but they have 
never made clear to me just what was meant in that one. 

Mr. Commager. Well, perhaps, sir, we could substitute the familiar 



192 

"betwixt the saddle and the ground the mercy sought and mercy 
found." This is a very old concept in philosophy, literature, and 
religion, that we can iorgive. God forgives; man, too, can forgive 
mistakes — if they are indeed mistakes. 

I am not adopting the position of the distinguished Senator from 
South Carolina, but pointing out that even if you refuse to concede 
the validity or sincerity of conscientious objection, nevertheless, 
there is a case to be made for forgiveness, for an individual ground 
and from society. 

Senator Hart. To be specific, I have never understood, unless it 
was to suggest what we now describe as a minimum w r age law, why 
somebody that works 6 hours would get no more than somebody who 
worked 1. But that has very little to do with the problem here. 

Mr. Commager. Yes. 

Senator Hart. Thank you, sir. 

Senator Kennedy. Thank you very much, Professor Commager. 
We appreciate very much your coming. 

Our next witness is Mr! David Harris, former Stanford student 
body president, convicted draft resister who has finished a 2-year 
term. Currently working as an organizer with the people's union, 
which has placed on the California ballot a referendum on the war 
in Indochina. 

Mr. Harris, we want to welcome you here before the Committee. 

STATEMENT OE DAVID HARRIS 

Mr. Harris. A short statement I would like to make. 

As I understand it, this committee is considering the question of 
amnesty. If amnesty were granted, the obvious reason I am here is 
that I would be subject to it. In January of 1968, I refused to sub- 
mit to induction into the U.S. Armed Forces. My refusal bought me 
a sentence of 36 months in Federal prison. I w r as released from the 
Federal Correctional Institution of La Tuna, Tex., in March of 1971 
after serving 20 months of my original sentence. I am presently 
under the supervision of the U.S. Board of Parole and will remain 
so until July of this year, when my original sentence expires. My 
own history makes amnesty a very pressing question. I am now a 
convict. I have no rights or civil liberties as they are commonly 
understood. I have a parole officer instead. But I did not start out 
as a convict. I started out as a high school football player who 
believed everything he was taught in his classes about American Gov- 
ernment. I believed in liberty and justice for all, I believed in 
peace and democracy and f reecfom and all the virtues that the Ameri- 
can state recites in its own honor. I believed in them so hard that I dis- 
covered they did not exist. 

Its hard to say when that discovery began, but it is easy for me 
to remember when it became obvious, because it was then that I 
decided to be a convict. 

I decided to be a convict because I believed in the peace and 
justice and freedom and democracy I had heard some people talk 
about. I decided to break the law because the law obviously stood 



193 

between me and those things I had learned to want, Before you 
gentlemen decide to give or not give amnesty, I think you should 
understand why people such as myself become criminals in the first 
place. I cannot speak for thousands of young people in this coun- 
try who now live outside the law, but I can speak for myself. 

I broke the law for three reasons. First, the law defined me and 
all the people I knew as pieces of property to be owned and manipu- 
lated however the Government saw fit. We are not citizens making 
the decisions citizens make. We are chattels who receive orders. The 
law I violated makes all of us pawns whose lives and deaths are 
not even our own. Terms such as those, no matter how comfortably 
they are made, are unacceptable to people whose freedom matter 
to them. 

And I did not make the law I violated. Neither did any of the 
people I know or see everyday and neither did any of the people 
I was locked up with. The law I was punished for breaking was a 
law made 2.000 miles away by men with power such as yours. And 
you are very few men. The rest of us live with little or no control 
over the situations we find ourselves in. What we live with are the 
embodied interests of a few people who are allowd to sit on top 
and look down while the rest of us must squat on our haunches 
and look up. To submit to those interests and the power they exer- 
cise is to destroy the democracy the law claims to defend. Democ- 
racy, it seems to me, is a practice. And if it isn't a practice, its 
nothing. The law I violated is a witness to its absence. 

But the law I violated isn't an abstraction, as we all know. The 
law was made to serve a policy. And it was that policy that made 
me into a convict. We are all living in an empire, a society that has 
attempted to extend its control over as many people as it possibly 
can. It. like all empires before it, has accomplished its ends in 
a very simple fashion. It destroys whatever opposes it. That policy 
invaded the subcontinent of Southeast Asia determined to dictate 
the terms that the Vietnamese, the Lao, the Thai and the Khmer 
people must live under. It meets the attempt of those people to con- 
trol their own fates with battalions of marines and enough raw 
explosives to turn all of Indochina into barren craters and grave- 
yards. The policy pursued itself without mercy. It sent Americans 
5,000 miles away to deny an entire subcontinent of Asians their right 
to live and exist as human beings. Anyone who respects his own 
liberty and the liberty of others has no choice but to refuse to be 
used for such slavery. 

For acting upon all those reasons, I became a convict. And need- 
less to say, there are more pleasant occupations. For 20 months I 
lived inside the operation of American justice, I learned to live 
inside bars and cages, I learned to exercise my freedom in very 
small and very dank places. I watched the police beat, extort, con- 
trol and deny myself and all my fellow convicts. I learned to watch 
my son grow once a month for 8 hours in a prison visiting yard 
under the eyes of the Department of Justice. I learned to live with- 
out the simple rights that were supposed to be inalienable in my 
birthright. And I learned to wait for doors to open and lights to 
come on and for the screaming late at night to stop. And I don't 



194 

regret it. Given a choice between being n butcher and being a con- 
vict, I will choose convict every time. 

And now you gentlemen are considering giving amnesty to people 
such as myself. To me, that means a lot, It means that thousands 
of young men like myself can walk out of their cell blocks and 
dungeons, return from their exile and their hiding places and walk 
on the streets like men are supposed to. I obviously have no objec- 
tion to giving us amnesty. Of course it should be given. None of 
us should have ever been made criminals in the first place. 

But I see some dangers in you gentlemen granting amnesty. 

The first is that amnesty is traditionally considered an act of 
forgiveness and I do not feel like I have done anything wrong. Nor 
do I feel I want to be forgiven for the act I took. The wrong rests 
with the law and the policy the law enforces. 

I spent 20 months on a maximum security cell block. There were 
two others in for offenses similar to mine. One burned draft files 
and the other refused induction. We used to talk about the possi- 
bility you men are discussing. And the conclusion we reached repre- 
sents at least my feelings. We decided that we wouldn't accept a 
pardon but that we would take an apology. 

The second danger I see is that I think it would be very easy for 
the U.S. Senate to find amnesty for an acceptable solution for people 
such as myself that have clear explanations for their actions and a 
constituency that you want to appease. But that you aren't nearly as 
inclined to give amnesty to the 19-year-olds who went AWOL be- 
cause they w T ere in love with the Chevrolet they left behind in De- 
troit. I think amnesty should be given to all people. I do not feel 
I can disassociate myself from those people any more than I can 
disassociate myself from all of the other victims of the policy the 
United States now pursues. 

And the last danger I see is that I believe in giving things to 
those who need them most. Right now the people of Southeast Asia 
live under a death sentence. The policy that provoked my disobedi- 
ence still flourished. It now uses machines instead of marines but 
it does the same thing. It is now massacring an entire civilization 
from 30,000 feet in the air. If amnesty is given, give it to South- 
east Asia. 

And the next day, after Southeast Asia has been spared from 
death by jellied gasoline and fragmentation bomb, release the rest 
of us from all the cages we've been put in and let all of us set 
making the nice words we recite into realities that live and breathe 
out where people live and not just in the documents we left behind 
200 years ago. 

[Applause.] 

Senator Kennedy. Mr. Harris, we appreciate your appearance 
here. The thrust of these hearings is to consider the administrative 
remedies that are available to a President as compared to the legis- 
lative remedies, also it is to try at least to provide an opportunity for 
those of us in the Congress, and most important of all, to the 
American people, to have an understanding of the depth of feeling 
of people like yourself who have had such a personal experience 
and are speaking with such conviction on this issue. 



195 

What are you suggesting to us as to what you would like to see 
in administrative action? 

Mr. Harris. Well, I would like to see a series of actions I think, 
that run in this order. First, 1 would like to see the withdrawal of 
all American military presence from Southeast Asia. I think that 
that military presence is what creates people who need amnesty. 
It seems to me the first thing you want to do with amnesty is limit 
the number of people who need it and to continue that policy is 
simply to make more and more people who need amnesty. 

I think secondly that a general amnesty ought to be declared 
for all people who have refused to be inducted into the Army who 
are either in prison at this point or in court processes or under the 
authority of the U.S. Board of Parole or who are in Canada or in 
hiding in the United States. I think to extend that amnesty to all 
those people who are in military prisons at this point, regardless, 
I think, of what crime they are in those military prisons for. 

I think it would be a mistake to assume that, let's say, for ex- 
ample, that there is a man inside a military prison who is in there 
for stealing $20, I do not think you can divorce the fact that that 
man stole the $20 from the policy that he was supposed to be a 
tool of or the institution he was a" part of. And I think the policy 
of trying to except those people out from each other is a process 
that is endless and possibly a proposition that is unjust. So I think 
wo should extend general' amnesty to all those people in military 
prisons as well and wipe the slate clean. 

Senator Kennedy. If you would follow that policy, you would 
close down all prisons. 

Mr. Harris. For those of us who have been in prison, it is not 
all that bad an idea. I do not think the American people are served 
by the Federal prison system I experienced or any State prison 
system that I experienced as well. I do not think it's that bad to 
consider. 

Senator Kennedy. But I was trying to follow the logic of how 
you were identifying the two issues, those who, because of deeply 
held feelings and reservations about the war either suffered going 
to jail or going out of the country and those that steal a jeep and 
have fled the country. I must say I see a rather distinct difference. 
I am interested in the fact that you feel that those that have either 
stolen a jeep or are involved in other crimes ought to be treated the 
same as those who acted because of deeply held moral, ethical, or 
religious beliefs. 

Mr. Harris. Well, my feeling — first, obviously. I am not holding 
my breath waiting for the Administration to grant amnesty, and 
neither are any other people who would be subject to it. But the 
point I am trying to make is if one is trying to dwell with what 
it is that generates those crimes in the first place, if one is trying 
to get back from the point of simply dealing with the effects and 
trying to deal with the causes that might either send me to prison 
because of a deeply held belief or send another man to a military 
stockade for. you know, stealing a truck or stealing a jeep, I think 
the same policy is responsible for both. I am all for clear and articu- 
lated positions and I am all for people trying to act with the most 



196 

sense possible and I obviously do not steal trucks or jeeps myself. 
I am not trying to put myself in the position of someone who does 
not have the background of people in this room, someone who has 
not had college and obviously has not succeeded in high school, some- 
one who has had the option of being on the unemployment rolls 
or going in the Army and he went in the Army and ended up, in- 
stead of perhaps taking an open political position, which he might 
not have even understood existed, stolen the jeep instead. 

My point is that man should never have been in the Army in 
the first place, because the only reason he was in the Army is be- 
cause of the policy being pursued in Southeast Asia. My point is 
the only reason for the crime is as a distinct result of that policy. 
Most human beings do not have articulated politics. They get put 
into situations and they try to respond to those situations as best 
they can and most people do not respond to them very well. They 
are spontaneous and tend to panic and I think those people ought to 
be included in that decision. 

I think that what we will find is that is, not a whole lot of 
people, that we are not expending ourselves in a great direction 
to grant amnesty for those people, but I do think they should be in- 
cluded. 

Senator Kennedy. It is your position that an individual who does 
not like a law or does not approve of a law ought to be able to 
interpose his own view in terms of violating the law? 

Mr. Harris. I think that any of us as human beings has to fall 
back on that option. I think it is one of the options that democracy 
rests upon. Not that I would envelope an abstract theory about it. 
What I would say is faced with a situation where the law demands 
that you do things that are unacceptable to you as a human being, 
you have no choice but to either give up your existence as a human 
being and obey the law or disobey the law, and I think the choice in 
that is clear, that you take your own existence as a human being. 
I am not sure one builds an abstract philosophy around it, nor am 
I interested in building an abstract political philosophy, but I think 
that is an option open. Had I had an option that would have al- 
lowed me to do the things in my mind rather than go to the 
penitentiary, I would never have gone to the penitentiary. Simply 
because of the consequences, I try to break as few laws as possible. 
When you start pulling down those 3- and 4- and 5-year sentences 
end on end, civil disobedience in too widespread — a fashion ends 
up being a life commitment in a way that you did not want to make 
a life commitment. Yes, I think people have that right and I think 
that duty. 

Senator Kennedy. Would you reject the idea of a conscientious 
objector status? 

Mr. Harris. Yes, I started to fill out a conscientious objection or 
form and I got about half way down it. First I realized that I was 
trying to convince five men whose job it was to send people out 
to kill each other that I was serious about not killing anybody. And 
I really thought if there was a doubt about somebocty's sincerity 
in the question of killing people, the doubt rested on those five men 
and not myself and I did not feel I was under an obligation to 



197 

prove to those men that I was sincere, I think because I do not 
recognize the right of those men to draft me in the first place. I do 
not think that the Government owns 2 years of my life. 

For the last 9 years of my life, I spent it trying to build those 
things that I think are real. I started as a civil rights worker in 
1963 with SNCC in Mississippi and I worked as an organizer for 
the National Farmers Union and I was Stanford student body 
president and I organized draft resistance and I did my time in 
prison and I continue to act in that commitment. So I think people 
are capable of acting for the kind of society they want without a 
government ordering them to do it. 

Nor am I willing to admit that the Government has that right 
and that function. Plus to my mind, the question was not just about 
my own personal statement. I could have gotten the conscientious 
objector classification, probably, and gotten myself free of the prob- 
lem of whether I wanted — I had to pull the trigger or not. But the 
problem seemed to me much bigger than whether I had to pull 
a trigger. The problem was an institution designed to force young 
men just like me all around the country to go out and do that. What 
I wanted to do was deal with that larger problem not just the 
problem of my own fate. I felt myself to be more of a conscientious 
objector more than the law allowed. I was not only conscientiously 
opposed to my own participation in the Armed Forces, I was con- 
scientiously objecting to the existence of those forces that put men 
in the Armed Forces. 

Senator Kennedy. Thank you very much. I appreciate your com- 
ing. 

The next witness is Mr. Martin Kelley, Gold Star Parent, 149 
Draper Street, Dorchester. Mr. Kelley is 65 years of age, has two 
daughters, and a son who was killed in Vietnam in 1968. Mr. Kelley, 
even though we know you have lost a son in Vietnam, we appreciate 
very much your willingness to come here and talk about this ques- 
tion. I am aware of your position and I think it is a position held by 
many, many people. I think the American people are entitled to 
your viewpoint and all of us in the Congress want to hear your 
viewpoint on this as well. I want to thank you very much for your 
presence here and your willingness to come. 

STATEMENT OF MR. MARTIN KELLEY, GOLD STAR PARENT 

Mr. Kelley. Senator Kennedy, I would like to straighten out a 
few facts if I might. No. 1, I am not 65, I am 48. I did lose a son 
in 1968, his name was Daniel Kelley. He was a member of the 1st 
Cavalry Air Mobile, killed in the A-Shau Valley and as of this 
moment is still in the A-Shau Valley. 

The gentleman who preceded me mentioned democracy several 
times. I was unaware that this is a democracy. I somehow felt it 
was a republic, when we pledge allegiance to a flag we pledge allegi- 
ance to the Republic of the United States, not to a democracy. De- 
mocracy is majority rule, period. A republic is majority rule with a 
constitution and bill of rights to protect the minority. 



198 

And I would also suggest that the gentleman, when he made his 
choice between being a butcher and a convict, presented himself to 
me as a very sick, a very sad animal. 

"Traitor, 5, has been mentioned twice, as I understand it, in the 
past few days in exchanges between members of the subcommittee 
and particularly Senator Thurmond and yourself, Senator Kennedy. 
I do not wish to use the word, "traitor." However, I would use two 
words, "ambush,"' and "betrayal." 

"Ambush," is a very deadly tactic that is employed generally in 
wars, the nature of which this Vietnam conflict is being fought. We 
have had words from two Members of this Senate, and I mention 
those names — yourself, Mr. Kennedy, and Mr. McGovern, both 
Members of the Senate of the United States, which talked of total 
amnesty, the righteousness of draft dodgers who have crawled into 
Canada, Sweden, and wherever else they could pull their heels in 
after them. But I would suggest by this definition of their righteous- 
ness, this high moral and honorable draft dodger group, it follows 
that over 2 million and a half Americans have now been labeled 
immoral and dishonorable: the over 55,000 Americans who have 
been killed in Viet Nam, some of who now rest here at home in 
America in their graves, some of whom have gone to Vietnam never 
to return. Combat troops generally in a war, particularly in Viet- 
nam, can expect and are ambushed and are betrayed. But the moment 
before that ambush, they are alive, armed, and could have at least 
attempted to defend themselves. 

However, our courageous political leaders are expert in the tactics 
of ambush, because after all. men who are killed in action can't hear 
these words, that try to destroy reputations, that attempt to destroy 
memories of honorable and dedicated men. 

They have heard these words of condemnation before ; they have 
heard them many times from men such as the man who preceded 
me; they have heard them from Hanoi, they have heard them from 
Peking, and they have heard them from some groups in Canada. 
They have heard them from Laos, Cambodia, Viet Nam. And now 
without shame, these words are heard in this country. Indeed, heard 
from the mouths of men who passed laws sending them to their 
deaths in Viet Nam with the very casual statement, "Well, we were 
wrong and thev were right :" men who have been several years 
predicting America could not win this war, America was losing the 
war, America must stop bombing, America must withdraw, America 
was engaged in an immoral and an illegal war, America was en- 
gaged in a racist war. 

Do you wonder why the American people try to determine who 
wrote the script — Hanoi, the New York Times, maybe CBS or NBC ? 
It was a no-win war because of restrictions placed upon the mili- 
tary. Who placed them and why? Fear of China coming in, Russia 
coming in? Maybe. But if China or Russia, or both, decided to 
come in, they could and they would manufacture an incident without 
any problem. 

I believe that this war is as moral a war as this country has been 
in and I believe that the voung men and the military forces serving: 



199 

in this war were and are as honorable and as courageous as any this 
country lias ever known. 

And let me repeat, as honorable and as courageous as any this 
country has ever known. 

1 would add one sentence: 1 make no apologies to any man for 
these words I have just spoken. 

Now, the purpose of this Committee, or subcommittee, was to 
decide whether or not we would grant blanket, total amnesty. I 
would suggest, number one, this Committee would be better engaged 
in suggesting and designing a memorial to the over 50,000 military 
men who died believing in this country's cause. Now in Viet Nam 
men are being wounded; they are being killed in Viet Nam; and 
we sit here with stinking empty platitudes, great philosophical 
flights. I would suggest perhaps that these discourses on philosophy 
might better be held in an upholstered outhouse, not here. 

It is difficult for me to understand, to look, to know why someone 
would suggest total blanket amnesty. 

I have not suggested that I am against the proposal that Senator 
Taft mentioned some time ago. which was conditional amnesty. But 
I do not feel that this amnesty, conditional amnesty, should be held, 
suggested, or put into effect until every American serviceman has 
left Viet Nam. And it is my thought and it is my suggestion that 
every American military man in Viet Nam should leave tomorrow, 
because they cannot win. This Government will not let them win. 

When I hear the empty phrases of a Fulbright, of a Mr. McGovern, 
with the turn about of yourself, Mr. Chairman, when for 3 years, 
John F. Kennedy stood in the White House — John F. Kennedy who 
talked about bearing any burden, paying any price, et cetera. These 
words led men to join the Army, to accept the draft, and to fight for 
their country. 

And now, with a very casual statement, "Well, we were wrong ; these 
draft dodgers are right." 

That is all I have to say. 

Senator Kennedy. Mr. Kelley, you have given us very powerful 
testimony this morning. I know that you speak from your heart 
and you speak with great concern; you have obviously given this a 
great deal of thought and there are many Americans who share that 
view. 

Mr. Kelley. I would apologize to this committee for two reasons. 
Number one, I did have, as was requested, 25 copies of my state- 
ment. In my rush to leave Logan Airport, the copies were inadvertently 
left at the airport. 

Senator Kennedy. You have done very well without it. 

Mr. Kelley. I would like to say to the people in the chamber 
that I am here only through the graciousness of Senator Kennedy. 
I did approach his Boston office; I did approach his Washington 
office; I did explain my stance. 

They know exactly what my position was. maybe not the words 
contained. But they still, however, made every arrangement to see 
that I got here, were aware of the time and at every instance have 
treated me well. 



200 

Senator Kennedy. Well, it is very important that all of us in this 
committee and the Senate understand it, Mr. Kelley. You have ex- 
pressed that viewpoint as well as I think it could be expressed and 
I want to thank you very much for being down here with us this 
morning and for speaking to us the way you have, from your 
heart and as a concerned American and as someone who has suffered 
grievously. 

I think the only point I would want to make at this time is in 
the references you made in terms of the courage and the commitment 
and the bravery of the young men who are serving in Southeast 
Asia. As long as I have been in the Senate and as one who has had 
serious reservations about our policy, as you well know, and have 
expressed them — as one who has visited Viet Nam on two different 
occasions and spoken about it, I do not think that there is any 
Member of the Senate — certainly not myself — who for a moment 
has anything but the highest admiration and respect for the Ameri- 
can fighting man in Vietnam and who does not believe that he was 
carrying out his responsibility to the best of his ability and with 
the greatest patriotism and commitment to his country. I think the 
real expressions of reservations have been about the political leaders 
that sent them there and that continue to keep them there. 

Mr. Kelley. And I feel that these political leaders that did send 
them there and these political leaders who were there when the 
Southeast treaty resolution was signed, referred to as the Tonkin 
Gulf Resolution, I would remind the Senator that the vote in the 
Senate, as I understand it, was 88 to 2. I think Senator Morse and 
Senator Gruening, then Senator from Alaska, were the only two 
who declined and it passed unanimously through the House. 

When I suggested the courage and the honor of the men in Viet 
Nam were being challenged, nobody can dispute that it has been 
challenged and in particular when from what's referred to as the 
so-called liberal press, immediately after — shortly before — the My 
Lai incident broke, we now hear terms such as Junkie Johnny. The 
gentleman preceding me has a choice between being a butcher or a 
convict. Those are the things I am talking about. 

Certainly there have been many articles in the national newspapers 
and I am sure you are aware of them, there are men on college 
campuses that are perhaps looked upon as a strange breed of 
animal. Indeed they may be; in that particular campus; because 
the campus frankly does not know what courage and honor mean. 
I am talking about many, though not all of the participants in the 
mislabeled movement, the antiwar movement, and I would say the 
mislabeled movement which is called the peace movement 

Senator Kennedy. Well, I think in fairness to my colleagues — I 
have heard, certainly not all of their speeches, but I have heard them 
debate and discuss the war. As a father, I would want you to realize 
that never on the floor of the U.S. Senate have I heard anything but 
the highest regard for the men ordered to Vietnam. I do not ques- 
tion that there are others who write about it or other groups or other 
people. 

Mr. Kelley. I am talking about two Senators who spoke on a 
radio station in Boston which I can name if you need. WBS. I am 



201 

talking in particular about Senator Hartke, I am talking about 
Senator McGovern, I am talking about what is laughingly referred 
to as a priest. Congressman Drinan, who have made statements 
much to the effect that the American fighting man is something less 
than a man. 

Senator Kennedy. I was interested in one of your final observa- 
tions about getting the Americans home now. In speaking as one 
who has expressed those views about the war for a number of 
years — not as long as I perhaps should have — but I suppose that 
what concerns all of us is that we do not lose another American 
life over there. 

Mr. Kelley. I think that should be of prime consideration. 

Senator Kennedy. I know you have lost and you have suffered 
grievously. As I have the highest regard and respect for the posi- 
tion you have expressed here, I would hope sincerely that you be- 
lieve that many of us in the Senate who have spoken about the war 
are equally concerned about insuring that there are not other fathers 
such as yourself who are going to have to lose sons. 

Mr. Kelley. The reason I am surprised, Senator Kennedy, is 
within the Constitution with regard to Congress, they, of course, can 
and do raise money to support an army. This can go on for a period 
of 2 years. At the end of those 2 years, they then have to acquiesce. 
As it were. 

Senator Kennedy. That is right. 

Mr. Kelley. This has been going on for quite some time. 

Senator Kennedy. I think that is a fair observation. You can say, 
well, if the Congress was so opposed to it, it should have cut off 
the military appropriation, and there are a number of people who 
share that view as swell. 

Mr. Kelley. That is right. 

Senator Kennedy. Well, as I say, Mr. Kelley, I want to thank you 
very much. You are a forceful spokesman for a viewpoint. I know 
it is very sincerely held. You have given us very helpful and useful 
information. I want to thank you very much for coming. 

Mr. Kelley. Thank vou for your consideration, sir. 

Senator Kennedy. Is Mrs. Valerie Kushner present ? 

(No response.) 

Senator Kennedy. Mr. Everett Brown Carson ? 

STATEMENT OF EVERETT BROWN CARSON, FIRST LIEUTENANT, 

MARINE CORPS, RETIRED 

Lieutenant Carson. Senator Kennedy, I would like to thank you 
for this opportunity to come today to speak on behalf of — well, on 
my own behalf but in behalf of the men who served in Vietnam. 

I would just like to present my remarks with a brief response to 
the gentleman who just spoke and to his comment that the service 
of Americans in Vietnam was courageous and honorable. Certainly 
in a manner of speaking, that service was courageous and honorable, 
however misdirected. I would only like to add to that that we feel 
no pride — at least I feel no pride — in the part that I took in that 
war, and that however courageous or honorable that service may 



202 

have seemed at the time, in retrospect, there is very little of that 
feeling left. 

We are all only too painfully aware that the war in Indochina is 
not over. American ground troops are being withdrawn at a steady 
pace. The number of Americans coming home each week in flag- 
draped caskets has dwindled to an almost unnoticeable trickle. It 
is difficult for "the enemy" to kill a computer technician in Thailand 
or a B-52 bombadier. The war has changed in character, but it con- 
tinues. The complexion of the casualties has changed but T wonder 
if there is any less grief in the family of a young Laotian killed in 
an American air raid than in the family of an American soldier 
killed in a Vietcong ambush. A compassionate view of both situa- 
tions makes us realize the universality of the suffering caused by 
this war. 

Certainly, though, we must realize as well that those wounded or 
killed are not the only victims of this war. The whole of Indochina 
has been devastated in a fashion unparalleled in human history. 
Our own country has been ravaged by neglect of the problems which 
have faced us at home while we poured so much of our strength as 
a nation and a people into this war. The total cost will never be 
known. 

Significant aspects of the toll which the war has taken within this 
country can be seen in any inner city in America, on any Indian 
reservation, in any prison, on the unemployment lists, in drug re- 
habilitation centers. In a very real sense, all of the people involved 
in these places are victims of the war. 

The one group of men who said "no" to that war, and to those 
consequences, are also victims. They are victims not because they 
have committed any crime, but because they did not. because they 
refused either to be trained to kill or to actually kill their fellow 
human beings. Whether they evaded the draft or fled the military 
service instead of going to Vietnam is not really the issue. Some 
knew sooner than others that they could not contribute to the atrocity 
in Vietnam. All are now exiles from the country whose people have, 
in the final analysis, decided that Vietnam was a horrible mistake. 

It seems that the bitterness of a confused society will now descend 
upon these men as we enter into discussion of the question of am- 
nesty and repatriation. Many in our society assert that those men 
should be punished for shirking their duty as U.S. citizens. Many 
say that amnesty must seem particularly distasteful to those men 
who actually went to Vietnam, to those who were wounded there, to 
those families who lost a son or a father. 

I served in Vietnam and Laos as an infantry platoon commander 
with the Marine Corps from October of 1068 until February of 
1969. Three years and 2 days ago I was wounded and began the 
journey home. I had some of the finest young men I have ever 
known in my platoon. I cannot help but feel that under different 
circumstances they would have contributed tremendously to the qual- 
ity of life for their fellow men. I regret that some of them will 
never have that opportunity. 

I saw first hand what the war has done in Indochina. I have seen 
enough suffering, division of peoples and families, and broken 



203 

bodies and spirits to last many lifetimes. The question of amnesty 
and repatriation is central to the reuniting of the divided spirit 
which exists among our people now. and will continue to exist until 
we put away not onlv our war machinery, but also our war men- 
tality. 

While it is true that those men broke a law. is it not also true 
that they obeyed a far higher moral code \ Actually the word "am- 
nesty" implies that a crime has been committed, that a pardon is in 
older on those grounds. T would ask what definition of "criminal" 
is being used when it is applied to a man who refuses to participate 
in a war which is itself a crime against humanity. 

Amnesty is also being considered only in conjunction with some 
form of alternative service, if and when the resister or deserter 
agrees to come back to this country. I see two very basic flaws in 
this proposal. The first is that the resisters themselves have stated 
openly and repeatedly that they are not interested in such an ar- 
rangement. They feel that they have committed no crime, and that 
alternative service or other punitive measures are totally unwar- 
ranted. It is of little consequence for lawmakers in this country to 
draft such a proposal if it will have no affect on the status of' the 
exiles. I believe that it would serve only to further alienate them. 

The second flaw is one which needs to be understood in a sympa- 
thetic way by the American people. Xo young man willingly and 
readily exiled himself from his family, friends, and country. To 
refuse induction into or to desert from the military is not an easy 
decision. The time which these men hare spent in exile has not been 
especially pleasant for most. Jail is not pleasant either, as David 
Harris told us. But the alternative to jail or Canada for these young 
men — that is. taking part in the war — was unthinkable. Their di- 
lemma, and their separation from home under such stress constitute 
hardships which few of us would be willing to undergo for any 
reason. To attempt to impose alternative service on top of this ex- 
perience could serve no constructive purpose. 

I had been back from Vietnam just over a year when the events 
of spring, 1970, occurred on college campuses across the country. I 
remember vividly how stunned I was at the news of the killings at 
Kent State, and again by the deaths at Jackson State. Violence had 
been a way of life for me in Vietnam, and the thought that the 
violence abroad was breeding violence at home was sickening. The 
hatred and frustration which was being nurtured by the existence 
of the war had finally come into full blossom. The unmistakable 
reality of what we were doing to ourselves as a result of Vietnam 
was in plain view. 

I cannot help but fear that the many years of this war. the con- 
stant exposure of all of us to the killing and the body counts, the 
politieization of the issue, and our apparent disregard of the lives 
of our fellow men have driven all compassion from the soul of 
America. The effect of these years of callous acceptance of war as 
our main instrument of international policy may have had a far 
deeper and more profound impact upon us as a people than we ever 
dreamed possible. We may now be incapable of seeing that it is those 
of us, like myself, who supported the war, or stood by and watched 



204 

the killing, who have committed the crime which indeed requires 
amnesty. It is not those men who refused to condone the destruction 
of the Indochinese peoples. It is our leaders who sold us this war, 
and wo, the people, who bought it. 

If there is any good to come from this tragic episode, it is that 
we may have the humility to admit that we were wrong, as we have 
partially already done, and to welcome home those men Avho dared 
to say with their lives what we oftentimes even fear to speak: 

"No more war. I will not kill my fellow man." 

Senator Kennedy. Let me ask you; you served, as you pointed 
out, as an infantry platoon leader with the Marine Corps in Viet- 
nam and Laos from October 1968 to February 1969, and you were 
wounded. How do you react to the fact that while you were over 
there sludging around in Southeast Asia, and suffering in an Army 
hospital, that there were these other people that had gone over to 
Canada or Sweden and were escaping the risk you had assumed and 
which your close friends, had assumed? How do you react? Are you 
not bothered by that, that they ought to be able to effectively get 
away with some kind of amnesty? 

Lieutenant Carson. I think, undeniably, each of us realized much 
sooner than others what the war in Vietnam was all about. I grew 
up with much the same kind of homelife that David Harris did. I 
come from a conservative background and was led to believe in the 
kind of slogan which I guess is best represented by "My country, 
right or wrong." 

Senator Kennedy. Where were you from? 

Lieutenant Carson. I grew up in Virginia. 

Senator Kennedy. What community? 

Lieutenant Carson. Lexington. 

Senator Kennedy. How big a community? 

Lieutenant Carson. About 7.000 people. 

Senator Kennedy. You went to school there? 

Lieutenant Carson. Yes. 

Senator Kennedy. High school there? 

Lieutenant Carson. I went to high school in Alexandria, at a 
place called Episcopal High School, a boarding school. _ 

Senator Kennedy. Then did you get some college training? 

Lieutenant Carson. I was in college for about a year and a half 
and was frankly very confused by the issue. When I dropped out, 
the only course of action, really, which my background and my 
current' conviction allowed me to take was to go into the military 
service. 

But I was in Vietnam, I guess, only about 2 days before I rode 
through the village, the resettlement village of Cam Lo, on my way 
out to join the unit to which I had been" assigned. I realized then 
and there to some extent what the war had done to the Indochinese 
people. 

I testified last spring before your own committee on refugees to 
the conditions in that village and I do not think they need restate- 
ment; they were horrible. 

Senator Kennedy. I am more interested in you as a spokesman as 
someone who served in the armed forces and received medals — the 



205 

bronze star and the Navy achievement medal and the Vietnam 
service ribbon, the purple heart and a couple of others. I am inter- 
ested in what your attitude is about those who did not serve in the 
armed forces, and has been argued here by some, that took the 
eas3 T way out. Do you not think that you got the short end? While 
you were over there suffering, losing your buddies, other people 
were leaving the country. Do you not resent that? Do you think 
that the Congress and the President ought to take a policy of leniency 
for them or mercy toward them ? Are you not bothered by that \ 

Lieutenant Carsox. I think that for these young men to have re- 
fused to impose the kinds of conditions upon the Indochinesc people 
that I as a participant in the Vietnam war imposed was a high moral 
conviction, which I certainly can't condemn. I do not think that any 
of us who have seen both the suffering in Indochina and the suffer- 
ing here at home as a result of the war would wish any more suffer- 
ing, either on the people who have exiled themselves from this 
country or upon their families. 

I do not think that there is a single family who. we with deep 
thought, would deny the reuniting of other families whose sons have 
gone to Canada or gone to jail or gone to Sweden. 

I left many friends in Vietnam and I regret that. I would do 
absolutely anything to get those people back. But I also left friends 
here, and there are others in this country who feel the way I do, 
that to punish someone for high moral convictions when we realize 
that what we did was a mistake and is really a violation of morality, 
in itself would be a crime. I do not think that many of us who served 
in Vietnam would wish any more suffering on this already incredibly 
divided Nation of ours, and that to reduce the debate and the dis- 
cussions of amnesty to one of bitterness and vindictiveness and to 
deny the reuniting of the Nation as a whole would be only to extend 
the suffering that we have seen in Vietnam and the suffering that 
we see in the ghettos and everywhere here at home. 

I think it is extremely difficult for a Vietnam veteran who has 
gone and then come home and who once believed in what he was 
figfhtino; for to have that belief devastated when he sees what it is 
doing. They are devastated. 

Senator Kexxedy. There are people who say that those who left 
are law violators, law breakers and cowards. How do you react to 
that? 

Lieutenant Carson - . I would react by saying that the law that was 
violated was one that never should have been made and that the 
policy in the Southeast Asia, as I think most of us are more than 
ready to admit right now, is also a policy which never should have 
been made; and that for a person to refuse complicity in that crime 
against humanity is an admirable feat for many to have accom- 
plished and certainly not a feat which he should be punished for. 

Senator Kexxedy. You are a student now at Bowdoin College? 

Lieutenant Carsox. Yes. 

Senator Kexxedy. How much longer do you have to go? 

Lieutenant Carson. I graduate in June. 

Senator Kexxedy. Do you have any idea what you are going to 
do after graduation? 

80-620—72 14 



206 

Lieutenant Carson. I would like to teach in high school. 

I have perhaps one incident which happened to me about 3 weeks 
ago thai I would like to add. I went with the American delegation 
to the Paris World Assembly for the Peace and Independence of 
the Peoples in Indochina and I met there the people of South Viet- 
nam, the people of North Vietnam, the people of Cambodia and 
Laos, whom I never had an opportunity to meet while I was in Indo- 
china, obviously. 

During one conversation with a gentleman from North Vietnam, 
he sensed my uneasiness at the fact that I was a veteran, at the fact 
that I had been there and participated in the destruction of his 
country, and he stopped me right in the middle of a sentence, and 
he said, "I realize that you are uneasy talking to me, coming from 
the kind of perspective that you do. Put I consider that since you 
feel the way you do now, you have always be my friend, that your 
past history is not important." I think this is the kind of sentiment 
which has been overlooked by all of us here in America, that for the 
most part, the Indochinese people are not fighting a war out of hate, 
they are fighting a war merely because they want their own country. 

I think that the people, the young men who left this country, saw 
their own country coming apart at the seams and could not partici- 
pate in that distention and that is why they left, because they loved 
their country and because they did not want to contribute to its 
destruction. 

Senator Kennedy. Thank you very much, Mr. Carson. We ap- 
preciate your presence here. 

We had scheduled Mr. and Mrs. Robert Ransom, who are also two 
Gold Star Parents, who were going to testify. They have taken a 
different position from Mr. Martin Kelley. I guess Mr. Ransom is 
ill today so he is unable to be here. If he files a statement we will 
print it in our record. 

Senator Kennedy. Our next witness is Mr. James R. Kerns. 

Mr. Kerns represents the Vietnam Veterans for a Just Peace. He 
was educated at the University of Washington, completed 2 years 
in the schools of art and science, served with the U.S. Army Special 
Forces from 1966 to 1969, served as a volunteer in Vietnam with 
the 5th Special Forces as an adviser to the Vietnamese. 

He has been associated with the Boy Scouts Special Forces, the 
xVmerican Legion, Disabled American Veterans, American Ordnance 
Association, Vietnam Veterans for a Just Peace, U.S. Army Re- 
serve, and a number of other activities. 

We appreciate your presence here. 

STATEMENT 0E JAMES R. KEENS, VIETNAM VETERANS FOR 

A JUST PEACE 

Mr. Kerns. Thank you, Mr. Chairman, members of the committee, 
fellow veterans, ladies and gentleman. 

First of all, I was going to give a brief history of myself, but 
Senator Kennedy has already done that. I would like to say to the 
committee that I appreciate having this opportunity to testify and 
that our organization, the Vietnam Veterans for a just Peace, some 



207 

8,000 veterans in this area, the Southwest arc 1 ;!, and that we are 
not pro-war, we are pro-people. Being pro-people, we have compas- 
sion for the suffering of the Vietnamese and we are for a truly last- 
ing and just peace in Indochina; one that is worth what it cost this 
country. 

I might add, too, Mr. Chairman, that we are for peace in this 
country as well because it seems that the repercussions of this war 
are going to go on for a long time to come. 

As yon said. I personally served in the Republic of Vietnam with 
the 5th Special Forces group and as a reservist, my introduction to 
war was fairly abrupt. Four days after I put on a uniform, I was 
in Bien Hoa. Republic of Vietnam. 

A month after that. I was on patrol in the Mekong Delta. And in 
my capacity as advisor to the Vietnamese irregular forces, I learned 
to identify with my Vietnamese and I learned to share their failures 
as well as their successes. 

But. really. Mi-. Chairman, we are shocked and we are dismayed 
that you are holding these hearings now while Americans continue 
to fight and die in the mud of Vietnam. It is an irony that some 
of the politicians who primed us for this war with showing answers 
about commitments to freedom and the right of self-determination 
of the IT million people in Indochina are now championing the 
cause of those who thumbed their nose at them 6 years ago. We feel 
that this discussion of amnesty at this time encourages desertion 
and even worse, makes the efforts of those who continue to risk their 
lives subject to ridicule. 

Senator Kennedy. Let me ask you just at that point. I have had 
the opportunity to visit a number of schools and campuses in my 
own State of Massachusetts. I would say during the Christmas break 
probably eight or nine colleges and 30 high schools. I do not think 
there is one school that I went to that I was not asked about amnesty 
by any of the young people. I would just say, and certainly others 
might have a differing viewpoint, but I would say that young people 
are more interested in this issue, as w r ell as those related to the end 
of the war, than perhaps any others. Do you find it different? And 
I am just wondering if that is the case and if they are interested in 
a public issue, should public figures try to inform themselves more 
responsibly about such an issue, or just say that is a terrible thing 
to discuss or even think about and therefore, we will not either in- 
form ourselves or educate ourselves about it or try to listen to differ- 
ent viewpoints like Mr. Kelley's? 

Mr. Kerns. Well. Mr. Chairman, I am certainly not opposed to 
freedom of speech and discussing the issues. And I think as long as 
these issues and discussions of these are kept within the framework 
or the knowledge that we are at war and that there are people who 
are dying and that we do have the national interest that comes 
before other interests, I think this is well and good. 

And we. too, have been to different high schools and different uni- 
versities. One thing I have to take issue Avith you on. Senator Ken- 
nedy, is that I find now on campuses that people care less. I find 
that generally, when we have our teach-ins or seminars, students 
want to get back to class, much different from when I returned a 
year and a half ago. 



20S 

Senator Kennedy. Sure, but does that reduce our responsibility 
of at least having an opportunity in the Congress or the Senate of 
llic United Slates to hear these different viewpoints and addressing 
ourselves to this issue? In a free society, is that not what we are sup- 
posed to be about, hearing these different viewpoints and expressing, 
at least, some kind of comment about it ? 

Mr. Kerns. I agree with this, Senator, but we feel that with pris- 
oners of war in Vietnam, every person here today and every other 
American as well must realize that this has a very detrimental ef- 
fect on the prisoners. I mean the suggestions, speaking of things 
such as amnesty, have a drastic effect on the situations that these 
prisoners of war now have in Hanoi or wherever they are kept. 
And we feel that these men who so bravely fought and sacrificed for 
their country will be told by their Communist captives that some 
Americans here agree with the Communists and that they are war 
prisoners. 

We have to keep in mind that when these people are captured, 
they are told by their Communist captors that they are not entitled 
to rights under the Geneva Convention because they are fighting 
in an undeclared war and that they are war criminals. 

Well, they are not war criminals. North Vietnam signed the Ge- 
neva Accords and these people are entitled to the protection of 
proper treatment. And hearings such as these — and you know that 
they are going to be taped and played to them. 

I would like to take license, Mr. Chairman, to read a letter here. 

Senator Kennedy. They are going to hear you, too, so they will 
hear your viewpoint expressed, too. hopefully. So that is useful. 

Mr. Kerns. I will preface it with my "yes," Mr. Chairman. 

This is a letter by Maj. Nick Rowe, and it is not a letter. This is 
out of his book, "Five Years to Freedom," which was published last 
year by Little, Brown. 

Maj. Nick Rowe, of course, was also in Special Forces, and he was 
a 

Senator Kennedy. Could I interrupt, Mr. Kerns, just at this 
point? That one light you see on that clock means there is a vote 
going on and I have to go over and vote. We will start with that 
quote if we can in about 6 or 7 minutes. 

We will vote and be right back with you. 

We will recess for 10 minutes. 

(Recess.) 

Mr. Schneider. The Senator has asked me to state that there are 
going to be three back-to-back votes and he will be unable to return 
until they are finished. 

(Whereupon, the committee recessed until 1:30 p.m. this same 
day.) 

AFTERNOON SESSION 

Senator Kennedy. The subcommittee will come to order. 

I want to apologize to our witnesses. These votes are unavoidable. 
We had four of them back-to-back. It did not make much sense to 
interrupt your testimony, so I appreciate your patience in waiting. 

Mr. Kerns, as I remember, we interrupted you in the middle of 
your statement. 

You may proceed. 



209 

STATEMENT OF JAMES R. KERNS— Resumed 

Mr. Kerns. Mr. Chairman, I begin my testimony again here with 
a quote out of a book written by Major James N. Rowe. Major Rowe 
was a captive of the Viet Cong for 5 years, and after he escaped 
from captivity he wrote his book, "Five Years to Freedom." It was 
published last year by Little, Brown. 

I quote from page three of my prepared statement : 

I began to form a picture of my country that was unlike anything I had 
ever imagined could happen. Could I have been so wrong about the cause I 
supported? Could the government have actually changed so much between the 
two presidents? The overwhelming opinion in the United States, particularly 
in the news I heard, was so anti-war, anti-government. Even though it was 
still coming from Radio Hanoi and the guards, the big change occurred in the 
sources. The communists no longer write their own English broadcasts: they 
merely selected from Western news agencies or from prominent individuals 
who were saying what Hanoi wished to put out. 

Mr. Kerns. I can vouch for this, because while I was in Vietnam, 
or standdown, several times we listened to Radio Hanoi and Radio 
Peking and Radio Moscow. 

These were not translations, either: they were statements made by 
American politicians that belittled our effort in Vietnam and gen- 
erally made us feel that we were outsiders. 

Mr. Chairman, for this reason, we do not think that amnesty 
should be discussed now, because it has a demoralizing effect on 
American prisoners of war. To go on and say that war is criminal 
and to say that Americans who fought in this war are criminals 
and that those who deserted and those who did not fight are good 
is not only to distort our purposes and our stakes and our achieve- 
ments of the American effort in Vietnam; it is also to seal the 
fate of the American prisoners of war by denying them their status 
as men protected by international law. 

My next point is that some conscientious objectors — Henry David 
Thoreau, for one — went to jail. Now. Henry decided they were not 
going to use his tax money to pay for an immoral war in 1848, so 
he chose jail instead. Not all conscientious objectors choose jail, of 
course, because our system of laws has offered an alternative service 
in noncombat roles, and since World War I, they have been in- 
numerable conscientious objectors who have objected to the war and 
acted within the American legal system. 

In a recent Supreme Court decision which has broadened the cate- 
gory of conscientious objectors by enabling objection to bearing 
arms on other than religious principles, there is a good indication 
of this. .Many of these CO's — conscientious objectors — have served 
their country honorably in a noncombat capacity in Vietnam. 

One such American, Milton Olive of the 173rd Airborne Brigade. 
was a recipient of the Congressional Medal of Honor. He also could 
have run. 

We feel that the evaders and deserters are very different from 
conscientious objectors, and even between evaders and deserters, 
there is a distinction. The deserter is a military problem. He is a 
member of the Armed Forces. He has taken an oath to defend his 
country and as a member of the Armed Forces, he is subject to the 



210 

Uniform Code of Military Justice until such time as the Military 
relinquishes its authority. 

Now, in discussing amnesty for evaders, we had better agree on 
what we mean by amnesty. Groups like the National Committee for 
Amnesty now are not talking of amnesty: they are talking of ex- 
pungement. Expungement means that the record is wiped clean. 
They refuse to admit that any offense was committed. They refuse 
to assign any responsibility to those who chose to evade or desert. 

Mr. Chairman, we feel that amnesty is an official act overlooking 
the seriousness of a crime which was committed by a group. A crime 
has been committed; there was guilt. Amnesty takes away the pun- 
ishment for the offense, not the offense itself. After the Second 
World War, President Harry Truman established an Amnesty 
Board by Executive order. While this Board reviewed 15.085 cases, 
and they were all reviewed on an individual basis because they found 
that many of these individuals had been convicted, or were guilty 
of other crimes, they recommended only 1,523, less than 1 out of 10, 
for amnesty. 

In the Civil War. President Lincoln gave amnesty to the deserters 
if they reported back to their regiments within a month, and most 
of the other amnesties given after the war were given to those who 
had fought with the South, not those that evaded the draft in the 
North or deserted their regiments. 

Responsibility and guilt are the basic issue here. We feel that 
these must be clearly established and that they lie essentially with 
those who refused to serve or who deserted. We want those who 
made such a decision to face their responsibility and not to run 
away from that also. We do not want to be closemouthed here and 
have our grandchildren read a history book that those who ran were 
excused and those who served were accused of fighting in an im- 
moral war. 

We want our grandchildren to know that we saw the Vietnam war 
firsthand and that we served proudly. We want them to know that 
we favor a settlement to that war and a responsible approach to those 
who served and those who ran. 

We also want them to know that a great and generous Nation, as 
a magnanimous Nation, we at some time were able to overlook the 
transgressions of those who refused to support this Nation in time of 
need, but that we will not for one moment tolerate the transferring 
of their guilt to the country. 

Mr. Chairman, in summation, we feel that this inappropriate talk 
of amnesty at this time does nothing more than distract from the 
real tragedy. That we can sit here so detached and so removed and 
offer freedom to those who actually championed their moralitv by 
pushing their guns in someone else's hands, possibly that very hand 
that is manacled to an animal cage somewhere in a Viet Cong-based 
camp, is unthinkable. 

T shall be happy to answer any questions of the committee. 

Senator Kennedy. Thank you very much. Mi 1 . Kerns. You have 
expressed your viewpoint very clearly and precisely. We want to 
respect that opinion. 

I suppose the logic of your argument would apply equally well 
to those kinds of expression of reservations about our policy in 



211 

Southeast Asia, would it not? I mean those who have expressed op- 
position to the war policy; I suppose they would fall in your gen- 
eral kind of category of those who are aiding or assisting or abetting 
the enemy, would they not ( 

Mr. Kerns. Well, in the first place, Mr. Chairman. I have not 
accused anyone here present or anyone in the Senate of aiding and 
abetting the enemy. I would like to make that clear. I merely feel, 
we feel, that we have certain responsibilities in time of war. 

Senator Kennedy. All right. I was trying — let us direct your at- 
tention to your expression that we should not really be involved in 
talking about amnesty now because of the impact that that has on 
the American servicemen in Southeast Asia or South Vietnam. Am 
I right in gathering that is your feeling? 

Mr. Kerns. Yes, Senator. I do not feel that we should be talking 
about it. 

Senator Kennedy. Because of the effect, the impact. Then. I be- 
lieve you mentioned the fact that Radio Hanoi, instead of using 
propaganda, was in many instances using American political figures 
who express reservations about our involvement in Southeast Asia. 
Did you not? 

Mr. Kerns. That is correct. 

Senator Kennedy. Well, what does that say about those of us in 
the Congress and the Senate that have very legitimate and sincere 
beliefs about our involvement and think it is a mistake, and do it 
with the same kind of sincerity in terms of their convictions that 
certainly I attribute to you and yours? Do you think that because of 
the fact that those views might be presented by Radio Hanoi, the 
Members of Congress or the Senate should not express themselves 
about their reservations on the policy and thereby be muzzled? 

Mr. Kerns. Senator Kennedy, first of all. I would differentiate 
between talking- about amnesty for deserters, while we are still fight- 
ing a war and your sincere right and your right as an American, 
and certainly as a Senator, to change your opinion of the war. I find 
it very difficult to understand how a war that was moral 6 years ago 
— and people like yourself who told us that to defend Southeast 
Asia was defending the world against communism and that this was 
our heritage and our destiny — 6 years later, to say something en- 
tirely different. 

Xow, I do not question your right to say that. Senator, and I do 
not question your beliefs. I am saying this is all very confusing and 
I think possibly this confusion has led to the reason that we have 
70.000 people that have left this country, because they are truly 
confused. And I was confused in Vietnam when I heard your voice 
over Radio Hanoi. 

Xow, I know, certainly, that you did not intend for Radio Hanoi— 
but I think we have to be aware of what we say, that these things 
are being twisted. 

Senator Kennedy. I remember those lines about conformity is the 
hobgoblin of little minds. Are we supposed to, if we see a mistaken 
course in our Nation, remain silent? You are not meaning to suggest 
that we should not change or express our views about something 
that we see is a mistake, are vou? 



212 

Mr. Kerns. No, Senator; I arn not. I think yon are very much 
entitled to express your views as a Senator and as an American. 

Senator Kennedy. Sure. 

Mr. Kerns. I, however, feel that this amnesty issue is something 
entirely different. As you said, we have 400 people accounted for by 
Hanoi. There are 1,500 people missing in action. We are talking 
about giving their freedom to someone who turned their backs on 
the country. 

I believe, I feel — our group feels — that we are talking about a 
different issue. 

As 1 said before, Senator, we feel that some time in history, in our 
tradition of amnesty, there is a place for amnesty. 

Senator Kennedy. Where is that? 

Mr. Kerns. But not while we are righting a war. 

Senator Kennedy. Where is that place? 

Mr. Kerns. I would say a good start would be, Mr. Chairman, 
when the last American — combat, prisoner of war, and body — is 
brought back from Indochina. Then I think this is a very appropri- 
ate time to offer forgiveness. 

Senator Kennedy. Would you give an unconditional amnesty at 
that time? 

Mr. Kerns. As I said in my testimony, Senator, I find it very 
difficult to recommend the unconditional amnesty on the grounds 
that some of these people have other criminal offenses. 

Senator Kennedy. Other criminal offenses? Yes, I do not think 
we are talking about that. But I am just talking about the question 
of those who have, based on a deeply held belief, reservations about 
the war. What about those? 

Mr. Kerns. Well, Mr. Chairman, I feel that the people who had 
deeply reserved beliefs about the Avar and had beliefs and concern 
about the country — in other words, respect for the system that we 
live in. which is not an arbitrary system — these conscientious ob- 
jectors have worked through the courts. Some of them have gone to 
prison, but they worked within the system. 

The system is at stake and unconditional amnesty would imply 
that they are right and we are wrong, the Nation is wrong. And we 
can never accept the guilt as a nation, certainly not the 2y 2 million 
of us that fought in Vietnam. We cannot accept the guilt for this. 

Senator Kennedy. You do not think a nation can make a mistake 
like an individual? 

Mr. Kerns. Do I think a nation can make a mistake? 

Senator Kennedy. Yes. 

Mr. Kerns. I do not think this Nation made a mistake. 

Senator Kennedy. Do you think this country has ever made a 
mistake ? 

Mr. Kerns. I imagine it has. I do not hold to the concept that the 
country is infallible. 

Senator Kennedy. Do you not think that there are people who 
have sincere beliefs that the country was making a mistake about 
our involvement in Southeast Asia and felt that little farmers that 
were running little farms 10.000 miles away, living on land that their 
parents had had for a thousand years, not in any way threatening 



213 

our lives or our security, should not be subjected to the harshest kind 
of fire power? 

Could you understand a young person who had rather serious 
reservations about that? 

Mr. Kerns. I certainly can, Mr. Chairman, and I can certainly have 
compassion for people who have convictions. But like I mentioned 
before, we do not live in an arbitrary system; we live in a system 
of laws. We live in a very great country that has made provisions 
for people to disagree. 

Senator Kennedy. But take, since you mention the laws, take be- 
fore 1970, for example. People who had a sincere reservation, but 
it was not based upon a religious belief, but was based upon a moral 
and an ethical belief, the Supreme Court did not recognize that 
before 1970. So they left the country. 

Now, in effect, the Supreme Court has caught up to them and 
still they are outside of the Nation. And they are fugitives from 
justice. 

What are you going to do about those people? You see, they 
would have qualified after 1970 as a conscientious objector. 

Mr. Kerns. I realize that. 

Senator Kennedy. Now, they are either in jail or outside the 
country. 

Mr. Kerns. Mr. Chairman. I would compare this with Prohibition. 
A lot of people went to jail during Prohibition and they are not 
jailing people for drinking now. It is the system. It is a system of 
laws and, I am sure, Senator, you realize this as well as I do. We 
have to abide by the law. That is why I went to Vietnam. 

Senator Kennedy. Is it not really the interpretation given the 
law? I mean, the Supreme Court interprets it — it might be the same 
law. It did not change between 1969 and 1970, except the Supreme 
Court said it had changed its interpretation. 

Mr. Kerns. Mr. Chairman, I cannot believe that we are in a 
debate here between subjective reality and objective reality. I am 
sure that everyone in this room knows that laws are not made by 
the individual. We make our decisions, and if we are men, we stand 
by them. 

Senator Kennedy. Thank you very much. I appreciate your ap- 
pearance here. 

Mr. Kerns. Thank you, Mr. Chairman. 

Senator Kennedy. Mrs. Valerie Kushner? 

Mrs. Kushner is a graduate of the University of North Carolina. 
Her husband is also a graduate of the University of North Carolina. 
He has been a prisoner of war for 4 years. Mrs. Kushner represents 
one of the thousands of families who have suffered in this war be- 
cause of the impact on a husband or son. 

We are pleased to have you with us today to help us resolve some 
of these differences, Mrs. Kushner. 

STATEMENT OF MRS. VALERIE M. KUSHNER 

Mrs. Kushner. Thank you, Senator Kennedy. I greatly appreciate 
the opportunity you have given me today to testify before this body 
on the question of amnesty. I am not directly or by personal knowl- 



214 

edge involved in the problems of those young Americans, who for 
a variety of reasons, decided not to serve in Vietnam. I am even 
more gratified to be here after hearing the previous testimony; over 
half of which purported to speak in my husband's name. 

For I come to you as the wife of a man who voluntarily enlisted 
in the Army in 1966, who in 19G7 chose to serve in Vietnam, and 
who has spent the last 4 years as a prisoner of war. But there is 
something to be said for the platitude which insists that the best 
teacher of compassion is personal grief. 

The Americans who have been imprisoned by the enemy in Indo- 
china and the draft dodgers and deserters share a certain area in 
common. Most noticeably, they are all unwilling exiles. There is not 
one among them who wanted to be presented with the choices which 
had to be made. In all cases, families have been separated and suffer- 
ing has occurred. The lives of the men have been abruptly changed, 
and in many cases, rendered nonproductive. I am not here to debate 
the wisdom of decisions already made, but rather to encourage an 
attitude of tolerance toward the men who made them. As a country, 
we are also young and prone to error. 

I would ask you to open your hearts to the words of Ecclesiastes : 
"To everything there is a season, and a time to every purpose under 
the heaven : . . . a time to kill, and a time to heal ; a time to break 
down, and a time to build up;*'. We have had our time of killing 
and now we must prepare ourselves for the time of healing. We 
cannot expect to make whole the Body America if we amputate 
from her flesh so many of her sons. 

The last decade has seen a tragic breakdown in many of our 
societal structures. If we are to begin the task of building up, we 
cannot deny ourselves the contribution of all who would participate. 

The vast majority of the exiles still consider themselves to be 
Americans. Several years' residency in Montreal should not involve 
loss of citizenship any more than the same period of time spent in 
the "Hanoi Hilton." The refugees wish, as does my husband, the 
soonest possible return to the land which nurtured them and the 
memories of which sustain them in exile. 

I've heard, again today in this room, it said that no amnesty can 
be given until the prisoners of war have been repatriated. I agree 
that neither will come to pass until first this terrible war is ended. 
But just as the Pentagon has formulated contingency plans for the 
return of the POW's, Congress must give thought to preparing the 
structure by which amnesty will be granted. It would be terrible, 
indeed, if the return of one young man was delayed because of bu- 
reaucratic unpreparedness. 

I can only hope that such a plan will not seek punishment or 
retribution, but has as its guide, compassion. For compassion is the 
most soothing balm for healing and the strongest bond for building 

up- . 

Finally, it has been said that the young men who chose exile in 
other lands have betrayed their heritage and rights as Americans. 
I can only remind you of a passage by Stephen Vincent Benet. It 
is a favorite of my husband's and one he marked long ago : 

Remember that when you say, "I will have none of this exile and this 
stranger for his face is not like my face and his speech is strange'', you have 
denied America with that word. 



215 

Gentlemen, the question before this Committee and this Congress 
should not be whether or not these young men who departed from 
the majority have betrayed America. In all humility, we must ask 
ourselves. "Will America, by refusing amnesty, betray itself V 
Thank you, Mr. Chairman. 
[Applause.] 

Senator Kennedy. That is a very moving statement, Mrs. Kush- 
ner. You have said a lot in a very short period of time. I just wish 
all the members of not only the committee but the Senate could have 
heard you. It was a very moving comment. 

There is probably very little elaboration needed on any of your 
statement. I think that, realistically, it is highly unlikely that any- 
thing will be done until the end of the war and until the prisoners 
of war are back. 

But how do you feel as the wife of a prisoner of war that the 
Congress and the Senate should even be thinking in these terms at 
a time when your husband is in a prison? 

Mrs. Ktjshner. I am very glad, frankly, that the committee, that 
the Congress, and hopefully the people of this country are now 
thinking in these terms. I. like everyone in this country, am antici- 
pating at some point a peace. When that peace comes. I do not think 
it will be meaningful in any way unless it is also accompanied by 
that necessary ingredient, good will. I think it is something for 
which we must prepare ourselves, and something which we must 
anticipate. 

If. at the time when the end of this war comes, the people of this 
country go from area to area pointing accusatory fingers at each 
other, charging either betrayal on the one side or war crimes on the 
other, then it will indeed be something which will have destroyed 
the essence of America. 

The war has been detrimental. It has hurt our country. But I 
would hope that embodied in the concept of our people and our 
Government still remains that spirit of good will which will unite 
us, permit us to rededicate ourselves, and to go on to better and 
higher destinies. 

Senator Kennedy. Does it bother you that the Senate is consider- 
ing amnesty for young people who have, as has been stated here, 
violated the law of this country, are outside of the United States, 
but have escaped service in the Armed Forces of the United States 
at a time when your husband, who has served the country bravely, 
is separated from you in a prison camp? 

Do you see inequities in this which have been pointed out, quite 
frankly, by a number of witnesses? 

Mrs. Kushner. I do not see any inequity at all. I think my hus- 
band in a prisoner of war camp and a young man who has gone to 
Canada are equally victims of this war." My husband enlisted in the 
Army and went willingly to Vietnam because of a sincere belief in 
a certain obligation to this country, a sincere desire in some way to 
serve the country. Yet. I have to ask myself during these last 4 
years that he has spent in captivity, of what service has he been to 
this country? 

< Senator Kennedy. I think all of us can ask that from time to 
time. The people who voted to send him there should be asking 



216 

themselves that, too. It is not just a question that those who have 
lost loved ones in Vietnam should ask themselves, but I think the 
country ought to be asking itself that. 

Do you have children? 

Mrs. Kushner. Yes. I have a daughter who is 8, a son who will 
be 4 in April. He was born after his father's capture. 

Senator Kennedy. Are they well? 

Mrs. Kushner. Yes. 

You know, when Mr. Kerns speaks about telling his grandchil- 
dren all about the glorious day in Vietnam, the camaraderie and 
the fighting, and probably how many kills he had that day, I think 
of my children who have been scarred by this war through the loss 
of their father, and I can only hope and pray that when my grand- 
children come around, I can say, yes; that existed, but this sort of 
thing does not happen any more. 

Again, if any type of peace conies without the good will, the 
forgiveness, that we should have at that time, I am afraid my grand- 
children, too, will be going to war. 

Senator Kennedy. Well, you have demonstrated an enormous sense 
of magnanimity and generosity and compassion about those who 
have been affected by the war. I think if the country or the people 
involved in public policy could share that compassion, our greatest 
days are still ahead of us. 

I want to thank you. You are a very courageous woman. 

[Applause.] 

Senator Kennedy. I next introduce Mr. and Mrs. Sam Kendall. 
Mr. Kendall is originally from Massachusetts, now resides in Rich- 
mond, Va. The Kendalls' son, the eldest of 13 children, Timothy, is 
now serving 4 years at Allenwood Federal Prison. 

He was indicted for violating the selective service law. 

I appreciate very much your willingness to come here and testify 
before the committee, Mr. Kendall. 

STATEMENT OF SAM KENDALL, RICHMOND, VA. 

Mr. Kendall. I think it is important that we first try to under- 
stand what motivated so many thousands of young Americans to 
resist the draft laws. It is important that we do not make a pre- 
determined judgment that these are impetuous children, acting on 
hasty decisions and bad advice. What decisionmaking process did 
they follow? How sincere are they? 

Obviously, I cannot speak for all of them. I can. however, speak 
for one, My oldest son, Timothy Kendall, is a draft resister. He is 
now serving a sentence at Allenwood Federal Prison Camp in 
Pennsylvania, 

Tim is 23 years old, the oldest of 13 children, and is a graduate, 
of the University of Notre Dame with a degree in theology. Dur- 
ing his senior year, Tim decided that he could not participate in 
any war, in any way — in the taking of human life. At this time, he 
intended to apply for the status of conscientious objector. However, 
for reasons which will be explained later, he changed his mind 
about this and. made the decision to simply not cooperate with the 
Selective Service System at all. 



217 

His noncooperation consisted of the following steps: 

1. He did not apply for renewal of his student deferment, thereby 
becoming classified as 1-A. 

2. When ordered to report for his preinduction physical, he did 

not. 

3. When order to report for his induction, he did not. 

Tim continued on with his studies at Notre Dame. For reasons 
which are still not clear, he was not taken into custody. At the 
end of his senior year, his mother and I attended his graduation 
ceremonies, and when they were over, we drove home to Richmond 
and went directly to the Federal Marshal's office, where Tim turned 
himself in. Judge Robert R. Merhige set a trial date and released 
Tim without requiring bond. 

Tim spent the next month writing a paper to be read at his trial. 
This paper set forth very clearly why he felt he had to do what 
he did. 

Many of his friends, and members of the Notre Dame faculty, 
came to the trial to testify as to his character and sincerity. Tim was 
given the opportunity to read his paper in court. He was found 
guilty and sentenced'to 41^ years in Federal prison. Three months 
later, Judge Merhige reduced his sentence to 2 years. 

After Tim was taken to prison we made copies of his paper and 
sent them to many people in Government — in the church — and in the 
press. We wanted people to be interested enough to start asking 
questions, to start looking for answers and, hopefully, to start find- 
ing solutions. 

We knew of Senator Kennedy's interest in the matter of the draft 
and draft resistance and amnesty. My wife, fearing that her letter 
to him might be overlooked in the press of urgent Government 
business, used a typical woman's approach and sent her letter to 
the Senator's mother with the request that she see that he got it 
and read it. Well, he got it, and here we are. 

Senator Kennedy. That is Mother for you. 

Mr. Kendall. Never underestimate the power of a woman. 

Senator Kennedy. Or of Mother. 

Mr. Kendall. Why did Tim and so many thousands like him, 
choose to ignore the orders of their Government? I repeat, these 
are not children. These are responsible young citizens deeply con- 
cerned with the future of America, anxious to make our world a 
better place in which to live and bring up their children. They want 
a world free of war, free of fear, free of poverty. They do not be- 
lieve it is necessary to kill in order to create peace. They do not be- 
lieve that it is necessary to first destroy in order to build. And who 
are we to say that they are wrong? 

What have we given these young people? They were brought into 
a world full of tension, a world in which the threat of total nuclear 
annihilation is an accepted fact, a world in which white man is 
pitted against black man, rich against poor, the powerful against 
the helpless. 

They protest, and we ignore them. "They're children," we say to 
ourselves. "They'll grow up." But maybe they are the ones who 
are mature. Maybe we ought to grow up. 



218 
I would like to read three quotes from Tim's paper: 

I have said that I am a pacifist, and that my conscience would convict me 
of murder if I allowed myself to be drafted. But the Selective Service law 
provides a loophole for people such as myself. Why did I not take advantage 
of the law's provision for Conscientious Objectors'.' 

The answer is, in part, that I am a believer in the American principle of 
the equality of all citizens before the law. If a law is a national law, as the 
draft law is. then it slum d apply equally, all over the nation, to all citizens 
affected by the law. But the fact is that the CO. provision of the law is not 
equally accessible to all draft-age men. Selective Conscientious Objectors are 
examples of people who cannot in conscience allow themselves to be drafted, 
and yet the CO. provision is not open to them. 

If one is sufficiently well-educated to write a convincing statement — and if 
he knows enough people who can write convincing statements of recommenda- 
tion — it will be much easier for him to obtain CO. status than it will be for 
one who has never had the opportunity to be educated. It is not enough for 
one to be sincerely pacifist : one must also be able to prove that he is, to the 
satisfaction of a group of men who do not agree with him in the first place. 

This puts the uneducated — or the under-educated — at quite some disadvantage 
in this matter. One with a degree in philosophy, for example, will find the 
task considerably easier than one with only a high school education will find 
it. A man with no education — or with a very poor education — be he ever so 
conscientiously opposed to war, may not be able to prove his case verbally at 
all. It is a general rule that such people have a far smaller chance of winning 
CO. status than those with more education. 

My conscience will not permit me to take advantage of an unearned priv- 
ilege which gives me an advantage over my peers who are subject to the 
draft law. If one is going to remove himself from contributing to war, then 
he must remove himself in a way that is open to all equally. 

I knew that I would never be able to cooperate with the draft. It should 
be pointed out that, like many other draft-eligible people, I considered very 
seriously the possibility of leaving the country. I decided against doing so 
because emigration is a far more permanent thing than prison is, and very 
simply, there are too many people in this country whom I love. Also, for 
better or worse, this country is too much a part of me for me ever to want 
to leave it permanently. 

Often I am called foolish, immature, and idealistic. To this charge, all I 
can say is this: I may well be foolish and immature . . . certainly that is 
very possible. But. frankly, it seems to me that in this day and age that which 
men call "idealism" may in reality be mankind's only hope for survival. 

Gentlemen, these are not the words of an immature child. These 
are the thoughts of an anguished young American, who is convinced 
that we are rushing headlong into self-destruction, both as people 
and as a nation. He does not want anything for himself. What he 
wants, and what his friends want, is a better world. A start must 
be made, and Tim has chosen his way to start. For this, his country 
is punishing him. 

And now, finally, we come to the question of amnesty. What does 
this country have to gain by offering amnesty to these men? I think 
the answer is obvious. What do we have to gain by welcoming home 
thousands of intelligent young people who want nothing more than 
peace on earth and good will towards all men? What do we have 
to gain by restoring full rights and privileges as Americans to those 
that have sacrificed their freedom trying to help others keep theirs? 
These young men are the potential leaders of their generation. They 
are capable of good leadership. They do not seek power or wealth. 
They will work for a better America and a better world. 

What do we have to lose by continuing their punishment? I be- 
lieve we have a great deal to lose. I believe we will lose our own 



(- ■ 



219 

self-respect and the respect of the world. We have conic to look 
upon ourselves as a great nation, a nation which has opened the 
doors to the homeless and the oppressed, a nation which has always 
worked for the freedom of all peoples. Shall we now demonstrate 
to the world that these goals no longer exist? That we punish our 
own citizens who work toward these goals in the only way they can? 

These men are needed at home. They want to teach — to work 
among the poor — they want to make America a proud nation again. 
Do not punish them any further. Do not attach any conditions to 
forgiveness. Bring them home. 

Senator Kennedy. Thank you very much. Mr. Kendall. Could you 
tell us a little bit about yourself and your family? I know that you 
lived in Brookline, Mass. for a number of years. 

Mr. Kendall. Right close to where you lived. 

Senator Kennedy. Field Street ? 

Mr. Kendall. Right off of Coolidge Corner. 

Senator Kennedy. Then you moved to Virginia? 

Mr. Kendall. Well, I originally lived in a section of Boston that 
no longer exists, the Old West End. Then we lived out in Brook- 
line. And when I went down to Connecticut. From there I went 
on into the Service. It sounds strange now. but I volunteered. 

Senator Kennedy. You were in the service? 

Mr. Kendall. I volunteered in the Second World War. 

Senator Kennedy. So you are a veteran? 

Mr. Kendall. Yes. sir. I was in Germany for a short while. I 
did not see combat. I was lucky: the war stopped before I got 
there. 

Senator Kennedy. How old were you when you volunteered? 

Mr. Kendall. Thirty-two. 

Senator Kennedy. So you served in the Army. Then you came 
back and settled in 

Mr. Kendall. Yes. I came out of the service in California, stayed 
there for awhile. Then I went to Louisville. Ky. I worked for the 
Reynolds Metals people, and they transferred me to Richmond. 

I left them after about 17 years and went to work for the U-IIaul 
Co. I am now the president of the U-Haul Co. in Virginia. 

Senator Kennedy. You have 13 children? 

Mr. Kendall. We have 13 children. Tim. of course, is the oldest. 
We have five boys and eight girls: no problems except money. 

Senator Kennedy. Are any of Your other children eligible for the 
draft? 

Mr. Kendall. Well. no. I think my second oldest son, Dan. has 
just gotten himself in pretty good shape with his draft number. I 
do not think he can be called. Jerry is not old enough, and the other 
two boys are quite small. 

Senator Kennedy. Would you tell us just about your education? 
Did you complete high school ? 

Mr. Kendall. Yes. sir. I went through Dorchester High School 
for Boys, and I managed to squeeze a couple of years into B.U. at 
night. That is about as far as I got. 

Senator Kennedy, Certainly your son did not. as I understand, 
grow up in what would normally be considered a sort of pacifist 
home? 



220 

Mr. Kendall. Oh, no. The closest thing, I believe, we came to 
pacifism was when I threatened to break the leg of any kid who 
fought with his brother or sister, but they did this all the time. 

Senator Kennedy. That is a pretty good rule. My father must 
have talked to you. 

Mr. Kendall. I was convinced for many years that I was rais- 
ing 13 enemies. 

Senator Kennedy. Have you given amnesty to any of them? 

Mr. Kendall. We have a couple of them that are gone now. Tim 
is in prison and Dan is married. My daughter, Susan, has her own 
apartment. So that gets us down to 10 enemies, and we are kind 
of cutting them down a little bit. 

Senator Kennedy. How do you respond when you are talking with 
some of your friends or neighbors and they say, what's with Tim? 
How come you've got a boy who is in 

Mr. Kendall. Most of them, Senator, do not ask, because I think 
they believe that I am embarrassed about it, and I do not want to 
talk about it, which is not so. We have written letters to the 
editors of the Richmond paper — my wife is a great letterwriter, and 
she brags about it, actually. 

As far as what my neighbors think, I've kind of lost track of my 
neighbors about 4 years ago, since I live in the South or pretty 
close to the South, anyway, and we brought in a black student from 
Africa and he lived in our house for about 4 months. I suddenly 
discovered I did not have very many friends left. So we do not get 
much recreation from them, anyway. 

But those people that I work with all feel that Tim did the 
right thing; since this is the way he felt, this is what he should 
have done. 

Senator Kennedy. How do you feel? You have been a hard- 
working man all your life, tried to bring up a family, and served 
in World War II, are a veteran yourself. How do you react to 
the fact that, you have a boy now who is in jail because he will 
not do his Service ? 

Mr. Kendall. Well, at first, my only reaction was that it was a 
tremendous waste of a lot of years in school and a lot of money. 
But now I do not feel that way any more. I feel that Tim is as 
right as anybody can be. I feel now the way he does. I feel the way 
he does. 

I feel particularly about amnesty that there should not be any 
conditions attached to amnesty. Now, he goes to the other extreme 
and he says that he is perfectly willing to forgive the Government. 
But I do not think that amnesty should be withheld from any of 
them, even from the people that got us into this mess in the first 
place. 

Senator Kennedy. How do the rest of the children react to this 
business of their brother's imprisonment? 

Mr. Kendall. The real young ones do not really understand. Those 
that are old enough to understand, I think, are very, very proud of 
Tim. We are probably going to bankrupt the Federal prisons with 
the amount of mail that Tim sends out, which he does not have to 
pay postage on. But there is a constant barrage of mail between 



221 

Tim and the children. They love him very much and they fight for 
the privilege of being the one that goes up to visit when we go up. 

The first time we went up to visit Tim, we made a mistake and 
took about nine of them with us, and we almost got thrown out. 
They said there was not enough room up there for all of us. 

Senator Kennedy. You mean you take all of your children up to 
visit Allenwood? 

Mr. Kendall. Yes. He is in Allenwood, Pa., which is about 6 
hours away from Richmond. 

Senator Kennedy. Can they all go up to see their brother? 

Air. Kendall. Oh, yes. 

Senator Kennedy. They can? 

Mr. Kendall. We do not need any special permission for mem- 
bers of the immediate family. 

Senator Kennedy. How often do you go? 

Mr. Kendall. We go about once a month, every 3 weeks or a 
month. It is kind of a rough trip. We usually leave at about 2 
o'clock in the morning and get there at 8, stay until 1, and drive back 
home. 

Senator Kennedy. What can you tell us about the sense of loss of 
the members of the family, either missing a brother or 

Mr. Kendall. Truthfully, Senator, I do not think that anybody 
feels that we have suffered a loss, really. I mean, we are in touch 
with Tim and we know he is all right and we know he has done 
what he wanted to do, and we know that he has done what he 
thinks is right and what we think is right. We all love him and he 
loves us, and this has always been this way. I do not think that we 
feel that we have lost anything. 

I know that there are a lot of people, probably, who feel sorry for 
us about it, but we do not feel that way. 

I am glad that Judge Merhige reduced his sentence to 2 years. 
He will be out, probably, in less than a year. And I presume that 
what he is going to do then is either go back to Notre Dame and 
continue his studies leading to his doctorate, or he may now go to 
work in the ghetto some place, or some community house somewhere, 
helping kids. He would rather help kids than do anything else. Tim 
is that way. 

Senator Kennedy. "Why do you think he went to jail rather than 
into exile? 

Mr. Kendall. Well, in his paper — his paper, Senator, was almost 
2 hours long. It was a long thing. I was surprised that the judge 
even let him read it all. But he goes into great detail on this, and 
he said that he felt that if he were going to practice civil dis- 
obedience, then he ought to be willing to take the consequences and 
simply go to prison. I think now maybe he feels a little differently. 
I think maybe he feels that those who left the country, actually did 
more than he did, because what they gave up they gave up perma- 
nently unless the_ country lets them back in, where Tim will be out. 
He will have paid his penalty and he will be out. 

Of course, he will not have his rights and privileges restored, but 
he will not be in prison and nobody will be trying to put him in, 
either. 



80-620—72 15 



222 

Senator Kennedy. What do you mean by the "rights and privi- 
leges? " 

Mr. Kendall. Well, I mean, it is my understanding that he has 
lost his right to vote, and I do not know any of the others, really. 
This is the big one. This really bothers him. 

Senator Kennedy. It is a prett} 7 basic one, is it not, pretty im- 
portant ? 

Mr. Kendall. This is the one that bothers him more than any- 
thing else. 

Senator Kennedy. That will certainly be restored, would it not, 
if any kind of amnesty were granted? 

Mr. Kendall. Yes, under amnesty. 

Senator Kennedy. Thank you very much, Mr. Kendall. You are 
good to come here and share this personal experience with us. 

Mr. Kendall. Thank you, sir. 

Senator Kennedy. You have done a very important service. 

[Applause.] 

Senator Kennedy. I am pleased to welcome Rev. Alexander Wil- 
son, pastor of the Westminster United Presbyterian Church. He 
has three sons, one of whom is a conscientious objector or, as he 
says, a deserter, from the U.S. Army. 

STATEMENT OF REV. ALEXANDER C. WILSON, PASTOR, WEST- 
MINISTER UNITED PRESBYTERIAN CHURCH, BURGETTSTOWN, 
PA. 

Reverend Wilson. Mr. Chairman, may I first express my thanks 
for the privilege of listening to this testimony today. It has been 
a most significant experience. 

I would like to say that my heart goes out to Mr. Kelley who 
spoke earlier this morning. I think he speaks to us most eloquently 
that the tragedy and the bitterness continue long after the killing 
stops. The tragedy of war is not just young men killed and maimed, 
not just young men mentally or spiritually destroyed. The tragedy 
extends throughout our Nation, as we have very poignant testimony 
of the extent and the depth of that tragedy — warping, twisting, and 
the ultimate sadness. 

I heard his words and I understood them, but I also heard the 
cry of his heart, and it was a cry for healing, for repair. To me,' 
it was the most — though unintentionally — it was the most convinc- 
ing argument for amnesty that I have ever heard. 

I speak today as the father of a conscientious deserter from the 
U.S. Army. For some time I had great difficulty in saying those 
words, because I served in that Army in World War II, as a volun- 
teer, for 3V2 years, and "deserter" was the dirtiest word I knew. 

I learned a new definition from my son. Of course, I love him, and 
of course, that makes me prejudiced, but it doesn't necessarily make 
me wrong. As I listened to him, and reasoned with him for a solid 
month before he left, he made sense, and I was proud of him. Not 
because he was right — I wasn't sure of that yet — but because he 
was doing what he felt was right, and for that any father can be 
proud. And any Nation can be proud of its young men when they 



223 

do what is right by their own conscience. This is what he was taught 
in his home, in his school, in his church. 

A previous speaker today said we must obey the law. There is 
only one law we must obey : the law of God or the law of conscience 
written in our own hearts. 

Why should we have amnesty for war resisters, draft evaders, 
and deserters? For the men in Canada, not because they are asking 
for it, for they are not. Xot because they want to come home,, for 
most of them went well aware of the consequences and expecting 
to stay and make their homes in Canada. 

There are better reasons for amnesty, reasons which are in our na- 
tional interest: 

1. Because we need all the good men we can get, and these are 
good men. Not many are cowards. Anyone who knew the courage 
it takes to leave family and friends, and security, and begin a new 
life in a new country knows these men are not cowards. They are 
extremely conscientious. They are sensitive to human need. They 
are highly idealistic. They have keen minds, good education, useful 
skills. A Canadian pastor said to me, "This is the finest wave of 
immigration Canada has ever received." If that is true, they are a 
correspondingly great loss to us, a loss that is not in our national 
interest. 

2. Because they have influenced the thinking of our Nation. To- 
day, virtually all of us see the war as a tragic mistake. But we did 
not always see it that way. These men were objecting, and paying 
the price of objecting, when I — and many of us — still felt the war 
was right and proper. At great cost to themselves, they have been 
a major factor in changing the thinking of our Nation on this war. 

3. Because they were right on the issue. Sixty thousand young men 
who were able to see clearly on a crucial issue, and acted on their 
convictions, when most of the Nation did not see so clearly, or was 
unwilling to act, may give us insights in the future which will keep 
us out of another tragedy. They were right on this war. They may 
help us avoid another. 

4. There_ is a humanitarian reason. A few, a small percentage, 
are not going to make it to Canada. They do not have the skills 
or education to become landed immigrants. They cannot work in 
Canada; they have no future there, There are a few others without 
strong enough personalities to survive so far from home and family. 
And there are some who have had situations develop in their fami- 
lies for which they are needed at home. This small number needs 
to return home. If we can release Jimmy Hoffa on the grounds of 
human compassion, can we not let these young men return, whose 
offenses are in no way comparable to Holla's? 

5. There is a reason based on fairness. We have treated people 
differently as our national attitude on the war have changed. My 
own son always refused to apply for Conscientious Objector status 
because, as he understood it and as the draft boards applied the rules 
at that time, he was not one. His objection was to this particular 
war, or so he thought. His reasons — the reasons he gave for not 
seeking conscientious objector status were : he would have fought in 
World War II ; he would be willing to use violent means to protect 



224 

his family against violence; he personally had a quick temper. To- 
day, Selective Service has advised the draft boards that none of 
these are reasons to deny a man the legal status of a conscientious 
objector. But a few years ago, at the time my son was drafted, that 
was not so. He was forced, by the practices in effect at the time, to 
either leave the country or go to prison if he would not participate 
in the killing. Today, the same boy, with the same reasons, would be 
given conscientious objector status. 

We have lost to Canada about as many men as we have lost, 
killed in Vietnam. If we let that loss to Canada become permanent, 
we would actually double the number of men our Nation and its 
families will have lost in this war. Such a doubling of losses cannot 
be in our national interest. 

I would just like to add that Mr. Kerns referred to the low 
morale of our Army and blamed this in part on the hearings on 
amnesty. Amnesty did not destroy the morale of our Army ; the war 
in Vietnam destroyed it. I should personally be delighted to allow 
Vietnam veterans to decide about amnesty. They are more in favor 
of it than the American public is. 

I would be quite willing to trust the decision about the men in 
Canada to the prisoners of war. I just wish we could put the deci- 
sion about the prisoners of war in the hands of the men in Canada, 
for then they would be home by now. 

Thank you. 

Senator Kennedy. Reverend, I have some questions — that is a 
bell for a vote. We shall recess for 6 or 7 minutes. Then we have 
some questions for you, and then we will have a panel and adjourn. 

(Short recess.) 

Senator Kennedy. The subcommittee will come to order. 

Again I apologize for interrupting you. I know it is difficult to 
maintain continuity of thought when we get interruptions like that. 

I would be interested, Reverend, in the reaction of your commu- 
nity. You are a minister of the Presbyterian faith, as I understand 
it. I would be interested in the reaction of your community to you 
and your family situation, how you have been able to cope with it, 
what the impact has been on your other children. 

Reverend Wilson. It was an interesting reaction. We were aware 
that it might be quite adverse. We were aware that it might mean 
that we would leave our church and move to another. 

Much to our surprise, I do not believe I have heard in our town 
a word of criticism yet. I am sure there is something said; I am 
not deceiving myself on that. But none of it comes to my ears at 
all. As far as I know, no one stopped coming to church, no one has 
said an unkind word. 

I was simply amazed at the breadth and the depth of the under- 
standing that existed, and I am from a small Western Pennsylvania 
coal-mining town. Men whom I had put down as military types, 
who are members of the American Legion and the VFW, came to 
me and said, if I had to do it, I would do what your son did. 

Senator Kennedy. How have your children reacted, your other 
children, to this? 



225 

Reverend Wilson. It has not affected them very much. They were 
both away in college at the time. It appears that neither one of them 
has to face the draft; they have high enough lottery numbers. I 
think that they might do the same thing if they did. They simply 
have not had to face a decision about it yet. 

Senator Kennedy. What is generally your attitude on this ques- 
tion of amnesty? I know you have given a great deal of thought to 
the particular problem that your son is facing. What do you think 
the Government ought to be doing about it ? 

Reverend Wilson. Well, I am definitely in favor of an uncondi- 
tional amnesty. I think amnesty, with conditions would be utterly 
meaningless. It is practically a joke to the men in Canada. They do 
not even want to talk about that. 

I have read a statement that is to be presented here by a group 
from Canada, and it represents my son's thinking very well. 

Senator Kennedy. Very good. Thank you very much, Reverend. I 
appreciate very much your appearance here. 

Our final witnesses today are two men who have been exiled in 
Canada: one, Mike Hendricks; the other Tim Maloney. They are 
working in centers in Canada where they work with other young 
men in similar circumstances. Both also can be here legally today be- 
cause their position as to draft vulnerability has been changed. 

Tim Maloney was reclassified, apparently punitively, and ordered 
to take a preinduction physical exam. He refused to report, and an 
indictment was returned. Mr. Maloney went to Canada in September 
1968. 

In October 1969, the Supreme Court handed down a decision in 
the Gutknecht case, holding punitive reclassifications illegal. Some 6 
months later, the indictment against Mr. Maloney was dropped. He 
was reclassified 1-A, and his name was placed in the first lottery. 
He turned up No. 361. 

Mike Hendricks made a decision to leave while classified 1-A in 
1968. He subsequently also received a high number and currently re- 
sides in Montreal. 

You are welcome, gentlemen. 

Mr. Hendricks, would you like to go first ? 

STATEMENTS OF TIMOTHY J. MALONEY, WINNIPEG, 
AND MIKE HENDPJCKS, MONTREAL 

Mr. Hendricks. I am going to yield to Mr. Maloney. 

Mr. Maloney. I am very glad to be here. Senator. I regret, 
though, that people like Mr. Kendall's son, who is in prison and 
Reverend Wilson's son, who is in exile, cannot also be here to testify, 
because their testimony would be very worth while. 

I also regret that some of my friends in the exile community in 
Canada cannot be here today. 

The last time I arrived in Washington, D.C., I was proud to be a 
U.S. citizen and anxious to serve my country. It was 1964 and I was 
accepting an appointment with the Federal Bureau of Investigation 
as a file clerk in the Justice Building. Five years later, in February 
of 1969, I discarded a Presidential order that instructed me to re- 



226 

port for induction into the U.S. Army. At that time my wife and I 
were living in Canada where I was assisting war objectors as a so- 
cial worker and attending graduate school. 

Today I am again in Washington, D.C., not proud this time of 
being a U.S. citizen but willing to give you my views on the am- 
nesty issue that has been raised by you and your colleagues. In 
doing so, I pray that you, who are leaders in this country, may see a 
way of reconciling the tragic wrongs that have alienated thousands 
of people like myself and have created grievous differences within 
the country that have torn asunder the American dream. 

While many tragic wrongs have been committed and are being 
perpetuated, they all have one common denominator— the Indo- 
chinese war. Before any substantive reconciliation of the many 
wrongs can occur, there has to be a genuine U.S. commitment to 
ending the war. Yet, the issue of granting an amnesty to some of the 
victims of the war has been raised and it would be ludicrous not to 
discuss it at this time. If discussion does no more than kill the inept 
bills of Senator Taft and Representative Koch, it will have been 
worth while. Though, to stop there without constructively dealing 
with the issue only fosters more frustration that has been so charac- 
teristic of the entire Vietnam-Indochinese experience. 

Newsweek's recent Gallup Poll disclosed that 71 percent of the 
people interviewed favored some form of amnesty. To ignore that, to 
be unresponsive to the will of the people, or to consider solutions 
such as Representative Hebert's "I would send them out on a ship 
like a man without a country" is characteristic of much Government 
policy and attitude, but hopefully a change is in sight for the seven- 
ties. 

If there is a sincere commitment on the part of Government to 
deal realistically with developing an amnesty proposal that will be 
beneficial for the Nation and the victims; that is, some of Hie 354,000 
soldiers classified as deserters since 1967 and the thousands of draft 
evaders, the Government will have to have a thorough understand- 
ing of the phenomenon. To date, most elected representatives have 
illustrated through their statements and bills that they have an ap- 
palling ignorance of the phenomenon and the possible encompassing, 
constructive solutions. 

In Canada, the exile community has viewed the development and 
discussion of the amnesty issue in the United States with deep con- 
cern. There is a wide consensus, as was illustrated at a national press 
conference in Toronto on January 17, 1972, that the word "amnesty" 
itself is inherently problematic. It implies forgiveness, and the exile 
community wonders what they are to be forgiven for — they did not 
commit the crime. They refused to. 

There is also concern that the present intensity of discussion over 
amnesty in the United States will end after the Presidential election. 
The exiles see themselves being used as pawns in a political game. 
They see the issue being used by some politicians in an attempt to 
relieve American war guilt, to buy the votes of the newly enfran- 
chised youth, to give the false impression that the war is winding 
down, et cetera. 



227 

They see the American news media portraying the exile commu- 
nity as being composed of sad, lonely, ill-begotten, misguided youth 
who made a mistake and are crying at the border to return; and 
that, the United States, being all-powerful and forgiving, is now in 
a position to show its paternal concern for its erring sons. They re- 
sent the fact that some people may be using them for personal gain 
and that others are definitely presenting an erroneous protrayal of 
them. 

Senator Kennedy. Let me interrupt and perhaps clear up one im- 
pression. That is the political capital that can be made on this. If 
you have the time and you want to come over and look at my mail 
count anytime, you are more than welcome to do it. But I think just 
in terms of the issue itself, as you can well understand, I am sure, it 
is an enormous emotional kind of question. I am not familiar with 
your Gallup Poll about 71 percent of the people interviewed favor- 
ing some form of amnesty. Perhaps you have it there; I shall get a 
look at it. 

I do not know how Senator Taft's mail is running, but I would 
say mine is running about 20 to 1 against granting it at this time. 
So, just to put to rest any kind of potential gain that can arise from 
it at this time, I make this point. 

Mr. Maloxey. That might be true. I am reflecting some of the 
concerns of the exile community. They see this happening. 

Senator Kenxedt. That is fair enough. Good. 

Mr. Maloney. And they fear that in the process of being used 
they may be hurt, that is, that one of the current amnesty proposals 
might be passed. Both Senator Taft's and Representative Koch's 
proposals attach a punitive string called "alternative service" as you 
well know. Plus, both proposals exclude deserters, who comprise the 
majority of the exile community in Canada. I have not yet met a 
war objector in Canada who accepts either of the proposals, nor do I 
or anyone else I have spoken with see justice in them. 

What the exile community would like is a totally complete nonpu- 
nitive restoration of their civil liberties. This sort of concept would 
turn the amnesty issue right-side-up by removing the indignity of 
having to accept forgiveness and punitive service. Also, it would 
apply to everyone and allow each individual maximum freedom in 
deciding upon whether to stay in Canada or return to the country 
which had no room for him. 

Since the majority of men in exile and prison are deserters, any 
substantive "amnesty proposal" must incorporate provisions that 
will enable them to easily regain their civil liberties. None of the 
current proposals or suggested proposals to date allow for this. Sug- 
gesting that each deserter be judged individually is ludicrous, if not 
mechanically impractical, due to the sheer numbers involved. Surely 
the 1947 Truman amnesty illustrates the injustices of establishing 
criteria and attempting to judge thousands of men individually. Yet, 
there appears to be a gross misconception that operates on the prem- 
ise that deserters have less morality and that their motives are less 
genuine and thus more suspect than the motives of their civilian 
peers. 



228 

While a draft-evader may have had a premature morality due to 
more education and social class benefits, the deserter's decision to 
leave the military and the United States is often a more difficult in- 
dividual decision. His reasons for leaving, may, in fact, be based on 
a greater struggle with his conscience. His actual decision to leave is 
difficult as he cannot reflect upon his future from a relative position 
of ease and he is in a hostile environment where he can obtain very 
little support. His military experience, contact with returning veter- 
ans, and concurrent mental agony is often his only education, but an 
extremely valid one that helps him decide upon his future. When he 
makes his decision to leave, based on such a gut level education, I 
can only respect, not question, his motives. 

Thank you. 

Senator Kennedy. I have that poll that you mentioned here, the 
Newsweek poll. As I understand, the participants when the poll 
were first asked, "Do you favor the proposed amnesty for Americans 
who left the country or those who have gone to jail," and so on. 
Fifty-eight percent opposed, 38 percent favor, and 4 percent have no 
opinion. 

Mr. Maloney. Excuse me. That was one of the first questions they 
asked. 

Senator Kennedy. All right. Then, when they were asked a choice 
of about five questions — favor amnesty without qualification, that is 
7 percent ; favor amnesty with service requirement along the lines of 
the Taft-Koch bill — that is 63 percent; favor amnesty — uncertain, 1 
percent; favor amnesty without qualification, opposed to, don't 
know, 7. 

So this poll does, at least, reflect some of the problems that are 
concerning a great number of American people in coping with this 
issue, quite frankly. 

Mr. Maloney. Most certainly. I thought it was interesting in that 
Gallup Poll, even though it covers only a small number of people in 
the interview, that a sizeable proportion of the majority certainly 
favored some form of amnesty. And I think that with some public 
education 

Senator Kennedy. I think our history reflects a willingness to cope 
with this problem. Obviously, now, I think it is highly unlikely that 
the country can move into it immediately. But I think it is the pur- 
pose of our hearings that people can gain an understanding of the 
views of some of the people we have heard today, which I think has 
been enormously important and very, very helpful and useful to us. 

Let us hear from Mr. Hendricks. 

Mr. Hendricks. Senator, I bring a statement that is composed by 
our group in Montreal. It is a group effort. 

Amnesty is not the vital issue of our exile. We went into exile be- 
cause of a war we then thought, and continue to think, immoral and 
illegal, and that war still goes on. Our exile will also go on, at least 
until the American war in Indochina finally and totally ends. Am- 
nesty is a postwar issue still awaiting a postwar era. 

We must first emphasize that we are here today not because we 
have chosen to make our return to the United States a topic of pub- 
lic discussion. However, it is an issue without our urging, and it is 






229 

an issue that involves our lives. We feel it is necessary to have our 
say. 

The refugee movement to Canada and Europe these past 8 war 
years has been primarily a human response to the inhuman destruc- 
tion of Indochina and to a society that has allowed such destruction 
to go on. Men and women of our generation, brought up believing in 
the United States as the defender of freedom, could see no connec- 
tion between that heritage and the realities of fire and death un- 
leashed on innocent peoples in Indochina. 

Nor has this war limited itself to destroying societies in Indo- 
china. It has also very nearly destroyed the society of the United 
States. The American dream we were all weaned on was exploded 
over Hanoi in 1967 and continues to explode daily all over Indo- 
china. Those of us who chose exile were adamantly refusing to lend 
our bodies and souls to such inhumane acts of our countrymen. Yet 
we were also declining to accept punishment in prison for positions 
regarding the war that the Pentagon Papers have now substanti- 
ated, and to which the Gallup Polls indicate the majority of the 
country now subscribes. 

Jules Feiffer called it "premature morality" — why should we be 
considered criminals for thinking then what everyone thinks now ? 

Amnesty. The definition is "forgiveness" or "forgetfulness." We 
cannot accept such a term : we cannot be forgiven for taking mor- 
ally correct stands against immoral acts of our Government. And we 
do not intend to forget, nor should this country forget, what forced 
us into our exile. 

We have no need of either forgiveness of forgetfulness. What we 
would seek — when the war in Indochina ends — is a totally nonpuni- 
tive restoration of our civil liberties. That is, the right to return to 
our home Nation without prosecution or recrimination. We feel that 
a withdrawal of civil or military charges for offenses due to actions 
relating directly or indirectly to the Indochinese war should be ex- 
tended to all those in prisons, underground, or abroad. 

That is what we would seek. The present legislation before the 
Senate — proposed by Senator Taft — is not at all what everyone hon- 
estly interested in the reconciliation of this Nation would seek. It is 
designed to pacify the American people, to rid them of their guilt 
for this brutal war, and to wash Indochina from the American con- 
science. 

We are all aware of the features of Senator Taft's bill. It is puni- 
tive in requiring alternate service as the condition for our return 
and, worse, it discriminates in favor of draft-dodgers over deserters. 

Deserters and draft-dodgers have been united throughout our exile 
in opposition to the Indochinese war. We see no difference what- 
soever among us. However, people at home insist on viewing draft- 
dodgers as middle-class, well-educated persons, and deserters as 
working-class, less-educated persons. 

While this is statistically correct, its validity is distorted when so- 
cial and economic class distinctions are related to levels of morality. 
Being born into a working-class home in no way disqualifies a man 
or woman from being morally repelled by the inhumanity of this 
war. 



230 

In truth, deserters as well as draft- dodgers left because of opposi- 
tion to the war and because of the malaise of a society that could 
create such a war. 

The only real difference, then, between draft-dodgers and deserters 
is a matter of when they became aware of their moral opposition 
and their inability to participate in such a war. A matter of timing. 
What possible rationale could there be for legislation that reduces a 
grave matter of morality and conscience to a mere matter of timing? 

Senator Taft's proposed bill is clearly not a judicious or a well-in- 
tended solution to the unprecedented situation of mass numbers of 
refugees from America. A more reasonable approach would have to 
deal equally with all refugees regardless of their status at birth or 
their father's income. 

There is no escaping the fact that the American poor — rural and 
urban — have been forced to carry the worse burdens of the Ameri- 
ican war in Indochina. And it would be only perpetuating this cru- 
elty to pass one more bill that discriminated against this class of cit- 
izens. 

Whatever formula is finally accepted as a means of determining 
whether a deserter in fact deserted because of moral objections, let 
that formula apply equally to all refugees. For we would not want 
to be split from our brothers and sisters by an arbitrary decision 
made in the American Congress. 

Allow us to conclude by stating one more time that the continuing 
war against the Indochinese peoples is immoral. It is now the re- 
sponsibility of the American people to brand this war as immoral, 
and to deal with the destruction it has wrought not only in Indo- 
china but also here in America. Thereafter, it would be patently dis- 
honest to continue prosecuting those Americans who knew this pain- 
ful reality years ago. 

Senator Kennedy. Thank you very much, Mr. Hendricks. I can 
tell that a great deal of thought went into both of these comments 
and statements, and we appreciate very much having them. 

Let me see if I have the position of your group. If we were to 
consider the most likely prospects for amnesty now, I would think 
that the strongest possibility is that there will be Taf t-like legislation, 
a conditional amnesty, while the war is winding down further. 

I am satisfied that you are certainly not going to get uncondi- 
tional amnesty, and it is probably unlikely that you would get condi- 
tional. But I would think that that would be the best opportunity to 
get anything at all. 

As I understand, as far as the people that you are in contact with, 
that would really be meaningless, is that correct? 

Mr. Hendricks. Yes, sir. 

Senator Kennedy. Certainly, at the end of the war, or the return 
of the prisoners of war, or at the ending of the draft — perhaps then 
you could consider unconditional amnesty. I think it is unrealistic to 
think that you are either going to get administrative action or legis- 
lative action on unconditional amnesty until the end of hostilities 
or the return of the prisoners of war. 

I think it is very, very unlikely. Am I right, that what you want 
is not the granting of amnesty, it is the withdrawal of the charges 



231 

that have been placed against these young people? Do I state cor- 
rectly what I gather from your testimony ? 

Mr. Hendricks. More or less, Senator. What we are seeking is 
not, as I said, forgiveness. I do not know the word in English ; I do 
not think there is one for what we want, a single phrase. Perhaps 
we could just say the recognition of the realities, the war bill — who 
knows what to call it ? 

Senator Kennedy. I am just trying to think of the specific provi- 
sions of an amnesty proposal. As I gather, your position is that am- 
nesty would suggest that you are being forgiven for something that 
you do not feel any kind of guilt about. 

Mr. Hendricks. Not a bit. 

Senator Kennedy. So, really, as I understand, your position is 
that you are not as interested in amnesty as the elimination of the 
charges and the allegations against the young people. 

Mr. Maloney. Basically. 

Mr. Hendricks. I would say, Senator, that the first thing we are 
interested in and that we reall} 7 came for is the end to the war, be- 
cause without the Vietnamese free we cannot be free. But beyond 
that, the word as used today by the opposition, "expungement." 
What possible good can we do for young Kendall if we do not ex- 
punge the record and get his right to vote ? 

That is expungement. You can call it anything you want, but we 
want everything just set back to status quo ante, because after all, 
the war was immoral, it was illegal. 

Mr. Maloney. If I might comment, just on two points. 

Senator Kennedy. Yes. 

Mr. Maloney. No. 1, amnesty, if we are stuck with that word, I 
think has to be inclusive. It has to include all of the victims of the 
war. It has to include the 500,000 men who have less-than-honorable 
discharges. It has to somehow deal with the men in stockades. 

Senator Kennedy. Would you include those that have been in- 
volved in other acts or committed other crimes ? 

Mr. Maloney. Yes ; I think there has to be 

Senator Kennedy. The guy in Senator Hart's example, the fellow 
who has taken the money from the company commander's till or 
stole some jeeps or been involved in crimes of violence in Germany 
and went to Scandinavia ? 

Mr. Maloney. I think there has to be a way, Senator, of dealing 
with that individual, a person who has destroyed property or 
injured people. I think if we look into the record, we will see that 

Senator Kennedy. Cannot you separate those ? Do you see a prob- 
lem in separating those ? 

Mr. Maloney. I see a problem legalistically in terms of how a bill 
might be drafted. 

Senator Kennedy. Pardon ? 

Mr. Maloney. I see a legal problem in how a bill might be 
drafted. I would think that it would be very difficult to sell a uni- 
versal amnesty that would say, let us open up the stockades, let us 
forget those things. 

Senator Kennedy. Do not put yourself in our position, which is 
trying to decide what is going to be in the legislation. I am inter- 



232 

ested in whether you drew a distinction between those that have 
been involved in either leaving the country or serving in prison 
because of opposition to the war, versus those that are exiled because 
of some other crime. 

You know, we have to wrestle around and see how that distinction 
can be drawn, but if we can draw that distinction, do you think that 
distinction should be drawn ? 

Mr. Malonet. If you mean, should they be included in some kind 
of amnesty proposal; yes. It is a very fine line. A person who stole 
the money from petty cash in the commanding officer's office — 
certainly, if he needed that cash to get to Canada and he had some 
strong feelings about conscience in a war, I think that has to be 
looked at in that light. 

Likewise, the man 

Senator Kennedy. What if he beat up an old woman and stole 
her bag, kicked her in the teeth, and is over there in Canada ? 

Mr. Hendricks. That is not an offense involving his military 
record. 

Senator Kennedy. That is what I wanted to know. 

Mr. Hendricks. I know you are not a hostile questioner. 

Senator, the most important aspect of it is that it be a bill to com- 
pensate the wrongs for all the victims. And, you know, we are the 
least important, really, although maybe the most numerous in some 
ways. Because the vets have suffered such hideous things. There 
could be amnesty. All the guys that got less than "honorables" are in 
some way marked and they would not even have been in that Army 
if it had not been for this immoral war. 

How can that be rectified ? God only knows. 

Mr. Maloney. That is why, in the light of this whole amnesty 
discussion, I think a conditional amnesty, if it were possible this 
year to get some bill through that had a conditional amnesty, I 
think it would be harmful, not helpful. I think it could preempt — 

Senator Kennedy. Well, that is helpful to hear. I am interested 
in your views. 

Mr. Hendricks. One thing more, Senator. You must be aware 
that the stockades are full of men but they are not there for knock- 
ing over the till or beating up old ladies; they are there for some 
things that, if you had done them in civilian life, might have got 
you fired from the job or not even that, just lose a day's wages. 
These guys' lives are marked. 

Senator Kennedy. Could you tell us a little bit about the life of 
the exile in Canada ? 

Mr. Hendricks. It is a varied experience. There are all kinds. The 
one thing that's for sure — there is a little joy in it, you know. We 
are not all sitting up there grieving and starving. There are prob- 
lems; yes. The majority are employed and they are doing quite well 
in their new lives. 

The one thing most interesting about it is that when we crossed 
that border, we made a big political decision and a social decision. 
We shook off Mom, we shook off the problems from home, status 
problems, career fantacies, all those things, and we had to start all 
over again. 



233 

We had nothing. We have started in different ways. We are a 
bigger melting pot there than we would have ever been at home 
because our channels are different and we mix and meet Americans 
that we would never know back at home. It is a wonderful experi- 
ence. 

Among the deserter community, there is a high proportion of 
Southerners who, although we have read testimony as to their loy- 
alty, and who are still very, very fond of their country, have gotten 
fed up with getting the short end of the stick. These boys — men and 
women, really — are the products of very poor educations, quite 
often, and bring not a whole lot with them. 

So Canada for them is a tremendous liberation. They get free 
schools, they get free education programs where they are paid to go 

to school. A lot of things 

Senator Kennedy. Free health care. 

Mr. Hendricks. Free health care, of course. We know how you 
feel about that. 

We can charge our medical care. There are a lot of good aspects. 
The only thing, of course, is that it is not home. 

Mr. Malonet. I think that the majority would like to be able to 
return to visit. I think this is one question that has continually come 
up; that is, if unconditional or any other kind of amnesty were 
granted, what percentage would return ? I think it is a rather mute 
question, because I think they have the right to return or they 
should be granted the right to make that decision, but the fact is if 
we wanted to get statistical, many would like to come back and visit, 
but many of them at this point and time are very well established, 
in Canada, have jobs, are raising families, have married Canadians, 
are in all sorts of walks of life. 

For the most part, they are doing quite well. Yet, we have another 
category of men in Canada who are having extreme problems, and 
these are the ones who perhaps have less education, have some emo- 
tional problems, have a lot of difficulty making the break, going 
across that border. They left a lot behind and they have trouble 
living with that decision, and they have trouble coping with their 
new life in Canada. Some of these have already, the AID groups in 
Canada — we are in the process, for example, of helping men return. 
Each month we help some men return. Some return on their own. 
But this is a small minority. 

Yet this is the group of men who are going to need the uncondi- 
tional amnesty, because they are certainly not the more vocal, edu- 
cated men who can speak from deep feelings of conscience in terms 
of their feelings. These are the men that, usually, our legislation 
never reaches. 

We try to help people and we generally end up helping those 
people who — we never reach those who need the help most. I hope 
this does not happen in this circumstance. 

Senator Kennedy. What is the attitude of the Canadians toward 
you? 

Mr. Hendricks. Mixed. On the surface, there is growing hostility, 
especially in Quebec. But they will say, "I don't like Americans, but 
yet we are with you on this issue." Quebecois, of course, have always 



234 

fought the draft, so they feel that, ideologically, we are in the same 
ball park. 

In fact, they are very warm and they have been most decent. 
Almost everyone was helped greatly by some Canadian family when 
they arrived, either financially or just emotionally. 

Senator Kennedy. Just, finally, I shall ask each one of you the 
question : Would each one of you do it again if you knew then what 
you know now ? 

Mr. Maloney. Yes; I would. It is a very simple answer, but it 
was a very difficult decision. I am one of those, who I referred to in 
my paper as one of the more elitist-type — the draft-evader, the 
person with the education who, for $2 could buy a manual that told 
him step-by-step how to do it. But I think that surely — it is even 
indicated in my presentation that at one point, I was working for 
the FBI and 5 years later, I refused an induction order — a lot of 
change occurred in that 5 years. 

That kind of change was seeing the war emerge and having a wife 
and not wanting to leave her, feeling very strongly against conscrip- 
tion. 

Then the most difficult decision, being an only child, leaving par- 
ents and really hurting both of them and going to Canada, knowing 
that I would never be able to return again. 

Then, all of a sudden, the cards were changed due to a technical- 
ity and I can come back here and live. Yet, I intend to stay in 
Canada. I intend to live there. I am making my home there. 

I would say I would do it again, but it would be no easier the 
second time, no easier at all. 

Mr. Hendricks. For me, I was very interested today when Mr. 
Kendall said that his son admires the exiles because we have taken a 
life term. Yet lately, I have thought, you know, that the guys in 
prison are the ones who really did it. At the time I went, I said, no 
prison. 

Still, I do not think I could take prison. I could not stomach it, I 
think. It takes so much strength. But, really, they are the ones we 
have to look up to and admire, because it is awfully, awfully hard. 
They are paying the supreme price. 

Definitely, if the situation were the same as it was in 1968, I 
would go to Canada. Today, I do not know. I really do not know. 
But I am going to stick it out until the end. I would not think of 
coming back until there is not another American in Southeast Asia, 
and that may be a long time. 

But I feel wedded to the Indochinese. 

Senator Kennedy. Thank you very much, gentlemen. You have 
made very helpful comments. 

Mr. and Mrs. Ransom, who could not make it today, will be our 
lead-off witnesses tomorrow. 

The subcommittee will stand in recess until 10 a.m. tomorrow 
morning. 

( Whereupon, at 3 :55 p.m., the hearing adjourned, to reconvene at 
10 a.m., on Wednesday, March 1, 1972.) 



SELECTIVE SERVICE PROCEDURES AND ADMINISTRA- 
TIVE POSSIBILITIES FOR AMNESTY 



WEDNESDAY, MARCH 1, 1972 

U.S. Senate, 
Subcommittee on Administrative Practice and 

Procedure of the Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 10 :10 a.m., in room 
4232, New Senate Office Building, Senator Edward M. Kennedy 
(chairman of the subcommittee) presiding. 

Present: Senators Kennedy (presiding), Hart, and Mathias. 

Also present : James Flug, chief counsel ; Thomas Susman, assist- 
ant counsel ; and Mark Schneider. 

Senator Kennedy. The Senate Subcommittee on Administrative 
Practice and Procedure will continue its hearings today into the 
procedures of the Selective Service System and into the administra- 
tive possibilities for amnesty. 

We have had 2 days of testimony thus far, the first day concen- 
trating on the current operations of the Selective Service System in 
which a host of errors and questionable practices have occurred, 
despite the general progress that has been achieved since our hear- 
ings 2 years ago. It is clear that perhaps many thousands of past 
registrants have been classified or inducted — or ordered for induc- 
tion — as a result of errors and omissions of local boards. 

And yesterday, we heard from nine witnesses who expressed 
nearly every possible view on the subject of amnesty, some with pas- 
sion, all with deep personal feelings on the matter, and their com- 
ments illuminated the difficult problems presented by this issue. 

Their testimony also provided clues to discover where the national 
interest may lie on this subject. 

Henry Steele Commager, the eminent historian, brought us a new 
understanding of the U.S. experience with amnesty following other 
wars. He quoted Washington, who first established the precedent of 
generosity. Washington said, "Though I shall always think it a 
sacred duty to exercise with firmness and energy the constitutional 
powers with which I am vested, yet my personal feeling is to mingle 
in the operations of the Government every degree of moderation and 
tenderness which justice, dignity and safety may permit." 

Dr. Commager then traced the history of amnesty through the 
Civil War where the policy of reconciliation won out over the policy 
of recriminations. 

And he concluded by emphasizing that the decision of the Govern- 
ment on the question of amnesty must not be made on the basis of 
passion but on the basis of what is in the national interest. 

(235) 



236 

We also heard from Martin Kelley, a Gold Star Father, who 
forcefully objected to amnesty under any conditions as a slight to 
those who have fought and died in Vietnam. 

The response to that position came from Mrs. Valerie Kushner, 
whose husband remains a prisoner in North Vietnam. Eloquently 
pleading for compassion for exiles and convicted objectors to the 
war, she quoted Ecclesiastes : "To everything there is a season, and a 
time to every purpose under the heaven : . . . a time to kill, and a 
time to heal; a time to break down, and a time to build up;" and 
said, "We have had our time of killing and now we must prepare 
ourselves for the time of healing. We cannot expect to make whole 
the Body America if we amputate from her flesh so many of her 
sons." 

We also heard from the veterans themselves. James Kerns, who 
served in the U.S. Army Special Forces, advocated no discussion 
today of the question of amnesty, and he was answered by Bronze 
Star Winner Everett Brown Carson. The former Marine Corps first 
lieutenant disagreed, saying, "If there is any good to come from 
this tragic episode, it is that we may have the humility to admit 
that we were wrong, as we have partially already done, and to wel- 
come those men who dared to say with their lives what we often- 
times even fear to speak: No more war. I will not kill my fellow 
man." 

David Harris, who served in prison and the young men who had 
chosen exile in Canada also argued for amnesty although they 
emphasized, as did virtually all who testified, that the first act of 
amnesty must be an end to the Avar. 

There also was the father of a young man serving a prison sen- 
tence and the father of the young man who had deserted from the 
Army because of his conscientious objections to the Vietnam War. 

Sam Kendall of Virginia noted that his son, who could have qual- 
ified for a conscientious objector classification refused to apply for 
that classification because he felt that other young men, less articu- 
late but no less opposed to the war, could not obtain a similar classi- 
fication. 

For those in prison and those in Canada he asked : "What do we 
have to lose by continuing their punishment? I believe we have a 
great deal to lose. We have come to look upon ourselves as a great 
nation, a nation which has opened the doors to the homeless and the 
oppressed — shall we now demonstrate to the world — that we punish 
our own citzens who work toward these goals in their own way ?" 

But finally, the Reverend Alexander Wilson, whose son now is in 
exile in Canada, said that he believed that if the question of 
amnesty for draft evaders and deserters were left to the Vietnam 
war veterans themselves, that amnesty would be granted. And he 
added that not only would he be willing to do that ; but, if the ques- 
tion of amnesty were left to the prisoners of war and the question of 
the prisoners of war were left to those in exile, he believed the exiles 
would be freed to return and the prisoners of war would be freed to 
return because those in exile would demand an end to the war imme- 
diately. 



237 

We have not settled the issue one way or the other. There is no 
preponderance of evidence or preponderance of logic that points 
irretrievably in either direction. 

We are left to struggle with our own conscience, to examine the 
competing interests and values and to try to arrive at a conclusion 
that is in the national interest. 

Today, we shall try to examine some of the implications for 
society, and for the institutions of this nation, for the system of law. 
for the military, and for the moral code of the nation of a decision to 
grant amnesty. 

For above all else, we must make our decision based less on our 
personal prejudices and beliefs than on what will be in the interests 
of a nation that must find some way to bind up the wounds caused 
by this war. 

* We've been going late in the afternoon the past days. We have a 
long schedule with many witnesses and other responsibilities so 
we've tried to keep it moving along as much as possible, especially 
when we have votes on the floor. We are in a difficult position right 
now in having three witnesses, all we have assured could go first. 

Mr. and Mrs. Robert Ransom, the Gold Star Parents from Xew 
York who were supposed to testify yesterday could not because of 
Mr. Ransom's illness. They have been able to come down from Xew 
York this morning and we want to get them right on because they 
have to get back and. in addition. Mr. John Geiger. the National 
Commander of the American Legion has been kind enough to 
arrange his schedule to be with us this morning and he has other 
obligations, so we'd like to get him on right away. 

Why don't all three of you come forward and we will take you all 
first. We'll hear from Commander Geiger and then the Ransoms, and 
then we will just have some questions. 

First Mr. Geiger, the National Commander of the American 
Legion, currently employed by United Air Lines. He served in 
World War II and represents 2.7 million veterans who are members 
of the American Legion. He has other business this morning and he 
has a statement and we would be glad to include the statement — 
we're glad to have vour statement in its entirety. Whichever wav 
you would like to proceed — we can include your whole statement or 
read from it or whatever you'd like to do. 

STATEMENT OF JOHN H. GEIGER. NATIONAL COMMANDER. AMERI- 
CAN LEGION: ACCOMPANIED BY EMMETT LENIHAN, CHAIRMAN, 
NATIONAL SECURITY COMMISSION, THE AMERICAN LEGION AND 
HERALD STRINGER, DIRECTOR, NATIONAL LEGISLATIVE COM- 
MISSION. THE AMERICAN LEGION 

Mr. Geiger. First I'd like to have the opportunity to introduce the 
two gentlemen who are accompanying me here. On my right is Mr. 
Emmett Lanihan, of the State of Washington, who is chairman of 
the National Security Commission of the American Legion; on my 
left is Mr. Herald Stringer, director of the Legislative Commission 
of the American Legion with whom I'm sure you're familiar. 

80-620 — 72 16 



238 

We have here a few Legionnaires who have accompanied me this 
morning representing the departments or States of the Senators on 
this subcommittee. We have in the city over 1,600 Legionnaires in 
attendance at our annual Washington conference. They are actively 
engaged in the work of the Legion at the Sheraton Park Hotel. 

Mr. Chairman, and members of the subcommittee, I am appearing 
here today at your invitation to present the views of the American 
Legion on the question of executive clemency for those who have 
failed to comply with the statutory and regulatory requirements of 
the Selective Service Act and those who have deserted from military 
service during the Vietnam war. 

You and the members of the subcommittee are to be commended 
for your efforts to develop information on this complex subject. As 
national commander, I am pleased that so many members of the 
subcommittee are veterans and members of the American Legion and 
are aware of our interest in defense and military matters. For the 
record, our current membership exceeds 2,700,000 honorably dis- 
charged former servicemen and women of World War I, World War 
II, Korea and Vietnam. 

With the exception of World War II, the largest segment of our 
current membership, some half a million, based their eligibility on 
Vietnam era service. While the reason for belonging to our organi- 
zation are many and varied, all of our members have a concern for 
our nation's well-being, particularly in the area of national defense. 

This concern has, from the Legion's beginning in 1919 following 
World War I, manifested itself in the resolutions annually adopted 
at its national conventions. 

Today my appearance and the position I take on amnesty are 
based upon resolution 207 adopted at our 1971 National Convention. 

A copy of this resolution is appended to this statement and I 
respectfully request that it be made a part of the official records of 
these hearings. The delegates who unanimously adopted resolution 
207 represented everyone of the 50 States and the District of Colum- 
bia. They were all honorably discharged veterans of wartime service 
and represented a cross-section of American ethnic, cultural, politi- 
acl and economical life. Resolution 207 also has unanimous support 
of the American Legion Auxiliary whose nearly 1 million members 
are the wives, mothers, sisters, and daughters of men who served 
their nation. 

Like you, we Legionnaires are deeply concerned over the complex 
problems presented by the issue of amnesty. It is an emotional prob- 
lem with overtones of justice, tempered with mercy and understand- 
ing. Amnesty is particularly difficult to consider today because of 
the profound and bitter division in our land over the Vietnam con- 
flict — our longest war and — like the Revolutionary, Mexican and 
Civil Wars — a bitterly divisive one. 

A large number of our young men are involved in the amnesty 
question — though far more were involved in this question in the 
Civil War. Today, our Vietnam casualties far outnumber our draft 
evaders. Over 70,000 by unofficial estimates are either military 
deserters or Selective Service evaders. For many, their excuse is the 
immorality of the participation of the United States in the conflict 



239 

in Vietnam. Canada, Sweden, and, to a much lesser extent, other 
countries have given these young men asylum. There cause is now 
being popularized and propagandized by many and diverse groups 
in the United States and abroad — including several candidates for 
high public office in our own country. 

Let us hope that as a result of these hearings, earnest and full 
consideration will be given to all facets of the issue of executive 
clemency so that we shall be able to discover and follow that difficult 
line between the dictates of the law and the charity our moral heri- 
tage demands. The American Legion has an intense and direct inter- 
est in amnesty because of the fact that its member all were subject 
to the laws, regulations, pressures and responsibilities of military 
service in defense of the United States. And most also, we are sub- 
ject to the operation of the Selective Service System. 

We believe that we have a real and vital stake in this issue since it 
concerns basically the rights and reponsibilities of the citizen to 
bear arms in defense of his nation. 

In 1783, Gen. George Washington expressed clearly the responsi- 
bility of citizenship which I believe goes to the heart of the proposi- 
tion under discussion. Washington said : "It may be laid down as a 
primary position and the basis of our system that every citizen who 
enjoys the protection of a free government owes not only a portion 
of his property, but even of his personal services to the defense of 
it." The American Legion was formed to help insure that these rights 
and responsibilities were carried out in civilian life by those com- 
rades who have borne them in time of war. 

Proponents of amnesty at the present time fall into two catego- 
ries. One group advocates unconditional amnesty for all military 
deserters and draft evaders. This group reasons that the Vietnam 
conflict is an immoral war for the United States; that those who 
recognize this and follow their conscience ought not to suffer any 
legal penalties for being right while their country was wrong; and, 
therefore, amnesty should be a blanket recognition of this. 

Some spokesmen for this view, go so far as to advocate full veter- 
ans' rights and pensions for deserters and draft evaders for their 
sufferings in Canada, Sweden and elsewhere. 

Senator Kennedy. I hadn't heard that before. 

Mr. Geiger. The second group of proponents offer amnesty to 
draft evaders but not to military deserters providing that draft 
evaders prove their sincerity by performing alternate service for 
their country. 

The American Legion believes that most draft evaders and desert- 
ers consciously decided to refuse to accept their responsibilities as 
citizens under the law; that they evaded their responsibilities by 
flouting our laws and legal remedies rather than by going through 
the available, legal channels of redress; that their actions in declin- 
ing to obey certain laws distasteful to them is contrary to sound 
legal and moral standards; and that the obligations of citizenship 
cannot be applied to some and evaded by others. 

The American Legion resolved that : "We go on record as oppos- 
ing any attempt to grant amnesty or freedom from prosecution to 
those men who either by illegally avoiding the draft or desertion 



240 

from the Armed Forces failed to fulfill their military obligation to 
he United States." In other words, we of the American Legion 
firmly believe that giving any wholesale amnesty — whether condi- 
tional of unconditional — would make a mockery of the sacrifices of 
those men who did their duty, assumed the responsibilities in time 
of conflict and — in many cases — were killed, seriously wounded, or 
now lie in a prison camp somewhere in Indochina. Over 50,000 men 
have paid the supreme price of patriotism and citizenhip: Another 
302,602 have been wounded or injured. Over 1600 men are prisoners 
or missing in action in Vietnam, Laos, or Cambodia and the casual- 
ties have not ended. 

How can any general amnesty be explained to these men? How 
can amensty be explained to parents, wives, children — all those who 
have lost a son, husband, or a father in their country's service ? How 
can we excuse ourselves to the prisoners of war, the missing in 
action, or to their suffering families for offering amnesty ? Further- 
more, what would be the effect on the morale of our Armed Forces 
if amnesty were granted to those who have violated the law and 
their oath of service by turning their backs and fleeing their coun- 
try? 

In our opinion, it could only badly undermine that morale and 
cheapen the value of honorable service to one's country — at the very 
moment these values are most in need of strengthening. 

Amnesty might even be the last bitter pill to our servicemen now 
caught in a web of confusion and held in disdain by those who hate 
the war and would do anything to drive us out of it in dishonor, 
including destroying our Armed Forces on the field of battle and 
their sprit. Our men are fighting the enemy. They are fighting dan- 
gerous drugs, they are fighting hatred and misunderstanding at 
home. They are coping with racial problems and the problems 
involved in a transitional period in military life and discipline. 

We cannot afford to add the issue of a general amnesty to those 
problems at this time. It is clear from the Legion's resolution that 
our official opposition to amnesty is not a total opposition to it but 
an opposition to any sort of amnesty — with or without conditions — to 
all draft evaders as a class. Our resolution asks that all draft evad- 
ers be prosecuted. 

This means that we would like each case to be heard in court tand 
tried on its merits. The courts can deal with the particulars of each 
case and exercise leniency or sternness, based on the actual facts 
brought out in hearings about each particular draft evader. Surely 
the courts will find those who are innocent, and who should be 
excused without any further conditions. It is also implicit in our 
resolution that those found guilty would still have open to them the 
right of appeal. Should appeal fail they would have recourse to the 
President' pardoning power, if, on review of the facts in each case, 
he wishes to extend additional leniency beyond what the courts may 
extend. 

This is implicit in our resolution, because any request for prosecu- 
tion implies not only the possible finding of their guilt but the 
finding of innocence and the avenues for redress, appeal, and pardon 
are available to all persons who are prosecuted. 



241 

Our request that draft evaders be prosecuted does not deny to 
them their full rights under the law, or the opportunity for Execu- 
tive clemency. Our resolution, in effect, opposes any form of blanket 
amnesty, and asks that each case be considered on its merits. The 
only other example in our history of amnesty for wartime draft 
evaders certainly bears out the wisdom of this approach — and, of 
course, it is consistent with the whole American system of justice 
which is based on hearing the charges and the facts in each case. 

After World War II, the Roberts Board tried to treat all 15,805 
World War II draft evaders the same, as all proposals for blanket 
amnesty do. The board threw up its hands at the injustice of such 
an operation. It found sinners of all degrees, as well as innocent 
men, among the World War II draft evaders. In the end, with the 
aid of the Justice Department staff, it reviewed each case. That was 
not thse easy way out but the Roberts Board shouldered the huge job 
of review rather than accept the onus of dispensing justice by the 
shovelful. 

There are some in this country who would create the illusion that 
every Vietnam draft dodger was acting on high principle out of 
deepseated convictions against war. When all cases were judged 
individually by the Roberts Board after World War II, nearly half 
were found to have been men wanted for murder, robbery, desertion 
of their families, and other serious crimes. 

On the other hand, others were found to have been legally exempt 
from military service, or they fell afoul of the law through igno- 
rance or illiteracy. President Truman gave a complete pardon to 
1,523 and a conditional one to 1,518 while more than 12,000 did not 
merit such treatment. If the Vietnam draft evaders are all prose- 
cuted, courts will be able to judge each case on it merits. They will 
again find a mixture of victims of error, deliberate conspirators, and 
professional criminals. The President could then have them screened 
and consider recommendations for clemency in each case. An act of 
Congress to provide an across the board 3-year stint of Government 
service in exchange for amnesty would offer that penance to some 
for whom it is to heavy a penalty and to others for whom it is too 
mild a punishment. The most flagrant offenders will get the best 
break and the least offenders the worst. 

This is hardly equal justice under the law. At least 10 Presidents, 
from Washington to Truman, have handled the amnesty question 
under existing machinery. An act of Congress that decides all cases 
without a hearing is neither necessary nor desirable. There was no 
amnesty granted after the Korean War. It is therefore clear that 
amnesty has not been lightly given by our modern American Presi- 
dents and it has been granted only after the shooting has stopped 
and the war is over. 

Lastly, an argument much used by advocates of unconditional 
general amnesty is that the Vietnam conflict is immoral, therefore, 
no Ameican should be prosecuted or punished for refusing to take 
part in any direct or indirect way in an immoral war. I am not 
aware of the precise moral standards used by those who would label 
our military assistance to the Republic of Vietnam immoral. It is 
rarely defined and the assumption that the Vietnam conflict is now, 
or was in the beginning, an immoral war is much in dispute. 



242 

We Legionnaires reject the simplistic labeling of our effort in 
Vietnam as immoral. We reject it on the grounds that such allega- 
tions are patently false. The United States' commitment to the gov- 
ernment and the people of South Vietnam is just and moral. We are 
committed to providing South Vietnam a means whereby it can 
defend its independence and its right of self-determination. Our 
involvement in Vietnam was authorized under proper constitutional 
procedures and was sustained by the Congres. 

The Vietcong were committing genocide in South Vietnam at the 
time we became heavily involved in that conflict — systematically 
slaughtering innocent civilians wholesale as a means of gaining 
political control. We knew this then and we know it now. Everyone 
within sound of my words knows it, but when discussion of the 
morality of the Vietnam war arises today, the fact that we inter- 
vened against genocide, when the United Nations would not, is 
simply omitted from the discussion. 

One cannot admit it and still define our role in Vietnam as immo- 
ral. We hope and believe that the Congress will not decide such a 
moral question by closing its eyes to genocide. We cannot believe 
that the Congress will ever decide that those who violated the law 
have the superior moral position to the President, the Congress and 
to the men who served. 

If Congress should decide that they do, we wonder who next will 
take up the pretext and use the precedent to claim a moral superior- 
ity over some fresh enactments of the Congress. We wonder what 
future legal dissemblance will be in store for us if we create such an 
extraordinary precedent as the Congress assenting to the rights of 
citizens to determine unilaterally which laws they will obey. 

Any determination of amnesty based on the moral superiority of 
draft law violators is contrary to our concept of justice. Histori- 
cally, the Congress, the President and the Judiciary have struggled 
to determine the extent of power of each. Should we now add a new 
dimension to this threesided struggle — namely any citizens who 
claims that his unilateral view of morality is superior to the Con- 
gress, the courts and the President alike ? 

If we establish this as the correct view, the day will arrive when 
there will little further use for the Presidents, the courts, or the 
Congress. 

In summary, the American Legion's position on amnesty is: one, 
we oppose any attempt to grant amnesty now. Two, after the con- 
flict ends, peace is established, and our prisoners of war and miss- 
ing-in-action have been repatriated or accounted for, each case 
should be reviewed under existing procedures available to the courts 
and the President. 

Thank you, Senator. 

Senator Kennedy. In your summation you indicate that it should 
be reviewed under existing procedures available to the courts and 
the President. As you probably understand, there has been consider- 
able historical discussion about the remedy for providing amnesty. 
One, it is suggested that there would have to be legislative action 
and secondly, under the constitution and the power of the President, 
the President could do it administratively. 



243 

We have seen in the course of history where the President has 
done it administratively. For instance. President Truman did so by 
establishing procedures which you have outlined. President Lincoln 
in 1862 did it, President Johnson in 18G8. I gather you believe that 
now legislation ought not to be considered but that we ought to use 
existing powers when at the appropriate time, as conditioned by 
your statement here, it ought to be done. Would I be accurate in 
gathering that impression from your testimony ? 

Mr. Geiger. Yes, we think that the system of justice are available 
in this case. 

Senator Kennedy. So that it can be done through administrative 
action. You see, this is one of the points that we were interested in, 
Now as I gather further from your comment, you are opposed to 
any amnesty at the present time. Can I ask you what would be your 
feeling and the feeling of your organization about young people in 
Canada who want to come back even while the conflict is going on 
in Southeast Asia and are prepared to perform some kind of public 
service. This is a sort of conditional amnesty. There's a rather sig- 
nificant question in my mind as to how many would take advantage 
of that conditional amnesty even if it were offered, but if there were 
young people who wanted to come back to perform some kind of 
public service at the present time, would you oppose any procedures 
along that line, too ? 

Mr. Geiger. Mr. Chairman, I think it is the opinion of the Ameri- 
can Legion that American justice is available today either in the 
military courts for the deserter, or in our civil courts or in the 
appeals procedures of the Selective Service Act for those who have 
evaded the draft. If these people through their own choice decide to 
come back today, they have the right to plead their case the same as 
any citizen. 

Now with respect to the penance that may be applied to them, this 
could be handled administratively or through the courts. I think 
that this might be appropriate. I would certainly wish that those who 
have to suffer the penalties of their acts would be engaged in con- 
structive activities rather than just be incarcerated with no opportu- 
nity to utilize their skills. 

Senator Kennedy. The one area — and I would be interested 
ob\ T iously in your personal view — we know the Legion has gone on rec- 
ord on this question, but I would be interested in your view about it. 
The point is made by many of those who feel that this country ought 
to be prepared to provide some degree of understanding for the young 
people who have left because of their feelings about the war, their very 
sincere moral belief about it, and their very deep feeling about the 
questions of our involvement in Southeast Asia. I'm sure it's a common 
feeling within the Legion and among those veterans who have served 
the country that they were righting in wars m the past because they 
had the very firm conviction that their country was right and they be- 
lieved strongly in what they were doing. I suppose that one of the 
problems that the country is going to be confronted with is how we re- 
spect the very deepseated beliefs and feelings of many young people 
who feel as righteous in their moral decision not to go to Southeast 
Asia as those who have served so nobty and bravely and courageously 



244 

in Vietnam in carrying the banners forward and in serving their 
country in the armed forces. 

I am interested in your view of a national problem that perhaps 
moves beyond the questons of individual justice in an individual 
case but towards the national problem of reconciliation in this coun- 
try, of trying to bring to it a sense of unity and understanding and 
respect. 

So I am interested in what your view is of the importance of 
trying to take steps towards reconciliation for this country at the 
end of the war. How important is reconciliation versus individual 
justice for each person? 

Mr. Geiger. Senator, the American Legion, as you well know, is 
actively engaged in activities with young people and thank God our 
Nation has such a fine, fine group of young people who are responsi- 
ble. They are becoming involved in all phases of our economic & 
social life. In their sense of responsibility as citizens they have not 
sought a personal sanctuary from the problems that we face in our 
cities, our economy, ecology and all the other problems that we con- 
front. But I think the American Legion's position is quite clear that 
individual justice should be the yardstick in determining the appeal 
these people have to return to their country. As the Roberts Board 
found after World War II, a great many of the people involved in 
the evasion cases or desertions had motives that were not of high 
principle. I think that is why we should not make a blanket sugges- 
tion as to 

Senator Kennedy. Or have committed other crimes ? 

Mr. Geiger. Yes, or had some personal problem that they fled 
from that is not at all related to the moral issue. 

Senator Kennedy. Well, let me ask just there, because I don't 
think there's any question that it would be an extraordinary legisla- 
tive challenge and an administrative challenge to try to separate those 
who, as Senator Hart mentioned the other day, have fled to Canada in 
exile because they had their hand in the company commander's till or 
have stolen the jeep or have been involved in some other crime. 

I don't think any of us are arguing their case. At least I'm not. 
But if we take it as a very essential part of an American character 
and American belief of doing what the individual sincerely believes 
is right, then how are we going to treat the young men who refused to 
go into military service because of their deep moral opposition to 
Vietnam. I think this is really the question. Your organization has 
been traditionally interested in how you heal those who have been 
wounded with lost limbs. Now we also have a very great obligation 
to those who have become associated with drugs and to those people 
who because of battle fatigue are mentally distressed. I think what 
we've got at the end of the war is a period of reconciliation and 
compassion. My question is, should the same kind of compassion that 
we show these victims of the war be extended to those who have 
serious reservations or moral outrage about the war. Should we be as 
understanding to these men as victims of the war ? 

Mr. Geiger. That's a decision that I think will be made at our 
national convention at some subsequent time. I think the people that 
have made this fine moral decision to run away, and have suffered in 



245 

their conscience because of having abandoned their country, are 
doing a great deal of penance today. We would hope that they 
would realize this themselves and come back to face American jus- 
tice which, I think, has always been tempered with the things that 
you discussed — mercy, consideration of the motives that they had, 
their having had advisors and college professors who might have 
misled them to renounce their country and their citizenship. 

I think though, Mr. Chairman, I should point out that the Ameri- 
can Legion has recommended to the President, to the Congress and 
to the American people that our first priority should be to welcome 
home the men who have served honorably and assist them in their 
full readjustment as productive American citizens as soon as possi- 
ble. This, we think, will stop the devisiveness we have in our Nation 
as a result of this war. 

We should have our men home from every part of the world as 
soon as possible and we hope that the lessening of world tensions 
today will allow this in the immediate future. 

Senator Kennedy. I was reminded, when you talked about return- 
ing veterans, of a fellow who shot a taxi driver in New York City re- 
cently. And he was tried, he was convicted, he was about to be sen- 
tenced and the judge asked for the probation report on this fellow. His 
name is Charles Johnson. He served in Vietnam, was wounded and lost 
a leg in Vietnam and went to an American military hospital and be- 
cause of the pain and other factors, he became a drug addict. He re- 
turned to the United States and because of the lack of sufficient re- 
sources both to provide for his livelihood and to provide for his habit, 
he had to use the only resource that he had available to him and that he 
had been trained for and that was a gun. And he went out and he com- 
mitted the robbery. There was resistance and he shot a man. 

Now the judge looked at all of the social agencies in New York 
City to try to get some agency to provide help and assistance to this 
person. He was convicted and there wasn't an agency in New York 
City that was prepared to provide service or help or counseling or 
guidance to this man. That fellow has just been sentenced to 25 
years in Attica State Prison. When you touch upon the country's 
responsibility to those who have served there, I hope this Nation 
will recognize this in the broadest possible way. My own feeling is 
that I would hope also that the same kind of understanding is going 
to apply to others who, because of sincere beliefs, have expressed 
them and have taken a different course of action. 

Senator Mathias? 

Senator Mathias. Thank you, Mr. Chairman. 

Very briefly, I would join you in thanking Commander Geiger for 
the thoughtful statement. 

First I would like to refer to the last thing you said, and that is 
the effort that the Legion has been making to help to rehabilitate 
those who have actually gone to Vietnam. 

I personally am very grateful to him and the members of the 
Legion staff for the assistance that they have been giving me in 
developing the new GI bill, because many of the problems that the 
chairman has referred to and which have been a plague on young 
men in this country coming back from the war, are due to the fact 



246 

that they went to the war with very inadequate educational prepara- 
tion. 

The GI bill which is now offered to them, by comparison with 
that that was offered to me at the end of World War II, is totally 
inadequate. 

It is inadequate by the standards of today, and I welcome his help 
and his leadership in trying to rectify that particular inequity. 

I would say that there seems to be a general agreement that the 
amnesty question is not going to be resolved before the war ends. I 
think we all share hope that the war ends soon. Yesterday isn't soon 
enough. 

I do think that these hearings are useful. I think that the consid- 
eration of the Legion is useful in considering, however, the machin- 
ery by which whatever actions taken are going to work. If it is 
going to be all judicial, as the Commander's statement proposes, 
then certainly this Judiciary Committee is going to have to consider 
some provision for courts adequate to handle this enormous load. So 
this is an area in which I hope the Legion will continue to work. 
Because the backlog in courts for ordinary litigation is fearful, we 
had better move rapidly in our thinking about the methods here. 

I'm impressed by the course of the argument as to conditional 
amnesty, amnesty which imposes not only certain immunities, but 
also certain obligations which may well do violence to traditional 
American concepts of civil liberty. 

All in all, it's been a very useful morning for me. I thank you for 
coming. 

Senator Kennedy. Thank you very much, Commander. We appre- 
ciate your appearance here. It was very instructive. 

We see our Massachusetts contingent of the Legion represented 
here today. 

Senator Mathias. Let's not overlook Maryland, either. 

Senator Kennedy. We are pleased to welcome Mr. and Mrs. 
Robert Ransom. Mr. Ransom originally was to speak yesterday, and 
was unable to do so because of illness. 

Mr. Ransom is an attorney in the general counsel's office of IBM, 
and in the past several years has been active in draft counseling. He 
is a Gold Star Parent. His son was killed in Vietnam, and he is par- 
ticularly concerned about the question of amnesty. We are pleased he 
has decided to be with us. 

STATEMENT OF MR. AND MRS. ROBERT RANSOM, 
GOLD STAR PARENTS 

Mr. Ransom. I apologize for my inability to be with you yester- 
day and for upsetting your schedule. In addition to what you said 
about me by way of introduction, I might add also that the last sev- 
eral years, in my spare time, I have involved myself with draft 
counseling and advising. My wife and I very much appreciate the 
opportunity to be here and express briefly some of our thoughts on 
the broad general subject of amnesty and to try to relate, specifi- 
cally, my own experience in trying to work under the Selective 
Service law. 



247 

But if I were to be granted the power to influence this Commit- 
tee's thinking on only one very narrow point, it would be this: . 
would like to be able to dispel forever that popular and prevalent 
misconception that it would dishonor the nearly 56,000 Americans 
who have died in Vietnam to grant amnesty now to these many of 
our children who have opposed participation in the way by one 
means or another. 

Time and again we hear this "dishonor" thought repeated. On 
January 24, 1972, it was expressed in the political cartoon on the 
editorial pages of the New York Daily News. The scene is a military 
cemetery. The ghost of a U.S. Vietnam casualty is perched atop his 
own gravemarker, reading a newspaper whose headline proclaims: 
"Amnesty Now for Deserters." The caption to the cartoon is the one 
word, "Unspeakable." 

When Senator Taft presented his very narrow-gauged and highly 
punitive amnesty bill (S.3011) to the Senate on December 14, 1971, 
his introductory remarks included the following statement :_ "When 
over 55,000 young Americans have lost their lives serving their coun- 
try in Southeast Asia, we should not simply welcome back the draft 
registers without any endeavor or requirement on their part to 
undertake service for their country." 

Kecently, amnesty, with particular reference to the Taft bill, was 
the subject of a panel discussion at a church in Manchester, Vt. ; 
near where I have a vacation home. The discussion leader was a past 
commander of the State VFW. The account of the meeting in the 
Manchester Journal attributes this to him: "He favored those 
returned to the United States facing their peers or the families of 
men killed in Vietnam." 

The theme is constant. But I would submit to you that it is not 
for the press, nor for other private citizens, nor for members of the 
Congress to presume to speak for the families of those who have 
died in Vietnam. 

Through our own most personal tragedy we can view the Vietnam 
war with a perspective that is simply not available to the rest of 
yon. From the anquish that we and our sons endured as we came to 
grips with the grim realities of Vietnam, we can perhaps uniquely 
comprehend what has gone on within the minds and consciences of 
those who have left the country, who have deserted, or who have 
gone to jail. I would suggest that we can best comprehend and sym- 
pathize with the notion of amnestj^. 

In our case, our oldest son died nearly 4 years ago. He was so 
opposed to what the United States was doing in Southeast Asia that 
he very nearly did not board the plane that was to take him there. 
The alternative, of course, was 6 years in jail. 

My greatest regret is that I did not try to put more pressure on 
him to follow the dictates of his conscience. While we realize that 
this life was utterly wasted, that fact is now beyond recall. 

When Mike died, we had two other sons already subject to the 
Selective Service System, with three others following along closely. 
I determined then that I would become as expert as possible in the 
intricacies of that System. 

In my efforts to educate myself, I became appalled at how little 
sound, legal advice there actually was available to our young men, in 



248 

spite of the fact that the Selective Service statutes and regulations 
have always constituted a clearly defined body of law, readily avail- 
able to the legal profession as a source of additional practice. I find 
it significant that in the past 3 years I have counseled the sons of 
partners in several of New York's largest law firms, and for no 
better reason than that their fathers could not find among their 100 
to 200 partners and associates any lawyers who was competent to 
even discuss draft matters intelligently. 

The foregoing is significant only in that it indicates the vacuum 
into which we let our sons fall. They saw the inequities that 
abounded in the system, particularly in the era from 1967 to 1969. 
Not only did the law itself have built-in injustices, but it was even 
more shocking to see the differences in the way the law was applied 
from one local board to another, often in neighboring towns. 

Those unfortunate enough to be caught by the System saw them- 
selves shunted off to a remote war that by and large they did not 
believe in. They had seen at home that the war was equally remote 
from our hearts and thoughts, and they saw life in the United 
States proceed as if the war barely existed, perhaps even somewhat 
enhanced by the prosperity that the war economy had made possible. 

I find it little wonder that, left largely to their own resources, 
large numbers of them began to seek alternatives. Some men have 
chosen to stay and face the Federal court system, and go to jail for 
their convictions. Others have elected to leave the country, mostly 
going to Canada. The first was a group that went either before reg- 
istering or before they had reached the induction notice stage with 
their draft boards. The second group consisted of those who were 
specifically avoiding induction. 

However, I might add that I also know some who have gone who 
had perfectly legitimate deferments, but who simply felt obliged to 
absent themselves from a system that could foster and support a 
Vietnam. 

Finally, in 1969, a group of peace organizations conducted a nego- 
tiation with the Canadian Government which resulted in their 
agreement to also make landed-emigrant status which is necessary if 
a man is to be able to work, available to deserters, so a new emi- 
grant group was started. 

We have all heard it said that many of those who went to Canada 
received bad advice, and we are all reminded that local draft board 
decisions are subject to appeal. Perhaps some few of them did 
receive bad advice, but again, there was so little advice of any sort 
available. 

To have consulted their boards was virtually hopeless. In my own 
situation, involving several hundred draft cases, I do not know of a 
single instance in a difficult or complicated case where a local board 
gave a registrant a full and complete exposition of his rights, and 
the alternatives available to him. 

Aslo, in the many appeals with which I have been personally 
involved, not only have I never won such an appeal but I also never 
so much as received one vote from the three appeal agents involved 
in each such case. In several such situations, I was later able to have 
the errors made by the boards corrected by higher administrative 
action or by recourse to the courts. 



249 

What this means was that the system was a travesty and farce to 
the young men involved in it, The laws said, for example, that con- 
scientious objectors could either do noncombat or alternate service, 
and yet those registered were all too familiar with the long parade 
of applicants who were turned down because the World War 
IT-Korea mentality that dominated most of the System did not 
choose to believe in their sincerity. Until comparatively recently, 
there were entire States within the System that had the reputation 
for never, or at best only rarely, granting a CO application. 

Among the deserters in Canada, I also know that some are there 
because their in-service claims for CO status were erroneously 
turned down. 

And so, in conclusion, I would submit that the untenable position 
into which we forced these young men is responsible for their pre- 
dicament today. These are our sons, and we need them back. They 
did not deserve what we have done to them. 

It would be most gratifying to me if I felt that I could have con- 
tributed in any small measure towards the granting of the broadest 
kind of general amnesty — one without penalties and conditions. I 
would consider it to be my personal Mike Ransom memorial general 
amnesty bill. That would have pleased him. 

Thank you. 

Senator" Kennedy. Mrs. Ransom, we want to welcome you here 
too. 

Mrs. Ransom. Could I make one comment ? 

I think it was referred to in the hearings yesterday, but I am con- 
cerned, I think it's terribly important that we give serious considera- 
tion to the problems of amnesty, but I do hope that it doesn't divert 
attention from the fact that the war really isn't over yet and hostili- 
ties haven't ceased. 

So, to go on, there are two statements attached to my remarks 
which I think are significant. One is a statement on amnesty made 
this past January at the Ecumenical Witness Council held in Kansas 
City, a religious assembly of 650 Protestant, Catholic, and Jewish 
leaders. In brief, the statement urges a broad general and plenary 
amnesty without any qualifications or conditions for all those who 
have been prosecuted or face possible prosecution by civilian or mili- 
tary courts for any alleged offenses arising out of the war. With 
this, I totally concur, and remind you again, that these are our chil- 
dren that we are talking about. 

I would like to submit that my experiences with the son we lost, 
and with his brothers and their friends, is that we as parents have 
not been able to give them adequate reasons for dying, or for killing 
other human beings in violation of everything we had taught them 
to believe. We are very uncertain of the justice of our country's 
cause, and in fact, we have come reluctantly to the view that our 
son's death served no useful purpose for his country. 

Now I want to stress something else, particularly in light of what 
Mr. Kelley said yesterday. I understand so well his anguish — I mean, 
to lose a child is one of the terrible things that can happen to you, 
and I think that you need to find a reason, something good that can 
come out of it, so I sympathize tremendously with what he had to 
say. 



250 

However, the fact that we have come to our bleak conclusion, does 
not mean that we shall ever underestimate the courage and dedica- 
tion of the young men who have died. If it were not for their par- 
ticipation, many more of their fellow Americans would not be alive 
today. Their medal citations certainly give ample testimony to this. 

Your brother, Senator Robert Kennedy, wrote us upon the death 
of our son and in his letter he quoted Winston Churchill : "Courage 
is rightly esteemed as the first of all human qualities because it is 
the one that guarantees all the others." 

This our young soldiers eminently and certainly had. No matter 
what the outcome of the war. or history's judgment upon it, nothing 
can ever diminish the honor in which we shall always hold them. 

However, I plead with you not to underestimate that it may have 
taken another kind of courage to go into exile or to jail. It is not 
easy to go against the tide of public opinion in support of conscience. 

The other attached statement was written by the late Chief Jus- 
tice Harlan Fiske Stone in 1919, and I think it answers the ques- 
tions that you were posing to the American Legion commander. I 
won't read it here, but he talks of the great value to the state of lib- 
erty of conscience, and the danger to the state if it violates the con- 
science of the individual. 

I believe that the vast majority of these young men to whom we 
now address ourselves felt that their very consciences would be vio- 
lated if they participated in the Vietnam war. 

Justice Stone also said that nothing short of the self-preservation 
of the state should warrant such a violation of the conscience. 
Surely, to offer amnesty to all of these young men could not possibly 
jeopardize the safety of the state. In fact, it would enhance it, since 
so many of them are deeply committed to social justice. 

Perhaps it would be very hard for us to say that what these men 
did in their various ways was right, but neither do I believe that we 
can say that they were wrong. 

Thank you. 

[Applause.] 

Senator Kennedy, I have some questions for you, but we have to 
vote right now. 

Senator Mathias. Let me just say, because I have no questions, 
that I want to thank both Mr. and Mrs. Ransom for being here. 

I have some sense of what it must cost you to be here, and I was 
much touched by the statement that you feel your son's death was a 
waste of life, and I know what you mean. 

At the same time, I hope you would feel that from our point of 
view whaat you are doing for his sake and what you're doing, I'm 
sure, for all the other many young men you have counseled, gives a 
meaning to his life and to his death and the manner of it, and I 
hope that that gives you some sense of satisfaction. 

Senator Kennedy. Senator Hart ? 

Senator Hart. Mr. Chairman, my apologies to you and to the 
Ransoms for my late arrival. I was at the dentist. 

Coming in, on the radio, I heard the testimony of the commander 
of the American Legion, and I'm grateful to have had a chance to at 
least arrive in time to thank the Ransoms. 



251 

Senator Kennedy. We will recess for about 10 minutes, and then 
I hope you can stay with us. 

(A brief recess was taken.) 

(The following was submitted with the Ransom's prepared testi- 
mony:) 

Appendix 

The following statement on amnesty was adopted by the Ecumenical Witness 
Conference in Kansas City, January 13-16, 1972. Sponsored by the National 
Council of Churches, it was a religious assembly of Protestant, Roman Catho- 
lic, Eastern Orthodox, and Jewish church leaders. 

The religious community of the United States, as represented by the Ecu- 
menical Witness, aware that the War in Indochina must be brought to an 
immediate end, urges the implementation thereupon of a broad, general and 
plenary amnesty, without any qualifications or conditions, to all those men and 
women who have been prosecuted or face possible prosecution by civilian or 
military courts for any alleged offenses arising out of the War, as well as the 
meeting of our social responsibility to those who might refuse amnesty, to the 
civilian members of the resistance, and to those who have served in the mili- 
tary. We urge this amnesty in order to overcome the paralyzing divisiveness of 
the war on our society and in order to mitigate as far as possible the tragic 
consequences of the War upon that generation that has been called upon to 
bear the heaviest existential burden of this war. 

We believe that amnesty will be one step toward the reconciliation of the 
society, but we do not believe that amnesty itself will constitute atonement of 
the society's responsibility for the War nor will it be in the nature of forgive- 
ness for any offenses, but rather an effort to give ourselves the benefit of the 
moral courage and idealism of the men and women of the young generation. 
We call upon the religious community further to cooperate with other groups 
in the society pursuing this objective and to implement this commitment by 
appropriate educational and other supportive action within their own constitu- 
encies. 

"The ultimate test of the course of action which the state should adopt will 
of course be the test of its own self-preservation ; but with this limitation, at 
least in those countries where the political theory contains that the ultimate 
end of the state is the highest good of its citizens, both morals and sound 
policy require that the state should not violate the conscience of the individ- 
ual. All our history gives confirmation to the view that liberty of conscience 
has a moral and social value which makes it worthy of preservation at the 
hands of the state. So deep in its significance and vital, indeed, is it to the 
integrity of man's moral and spiritual nature that nothing short of the self- 
preservation of the state should warrant its violation ; and it may well be 
questioned whether the state which preserves its life by a settled policy of vio- 
lation of the conscience of the individual will not in fact ultimately lose it by 
the process." 

— Harlan Fiske Stone, 1919. 

Senator Kennedy. The subcommittee will come to order. 

Can you tell us a bit about your son? He enlisted in the Army? 

Mr. Ransom. He enlisted one step ahead of the draft board, and 
went ultimately to Vietnam, in early March of 1968. 

He went as a second lieutenant, and he was a platoon replacement. 
On March 16, which happened to be My Lai Day, he was assigned 
to the light infantry, the 11th Light Infantry Brigade, which was of 
course the unit involved in My Lai; 4 weeks after taking that as- 
signment, he was slightly wounded by a mine, returned to his unit, 
hit another mine himself and died 8 days later, on May 8, 1968. 

Senator Kennedy. Now there are those that suggest by consider- 
ing amnesty for those who have left the United States "because of 
moral reservations about the war, that if we were to grant them am- 
nesty, that somehow, you would dishonor those who bear the uni- 



252 

form of the United States, and you would particularly dishonor 
those who had lost their lives in Vietnam. 

As a parent who has lost a son there, how do you view that. 

Mr. Ransom. Well, that of course is the myth I would like to dis- 
pell. 

We know perfectly well how our own son felt about the war, and 
its immorality, and the fact that we didn't belong there. 

As I say, the only thing — when he left our home to go to the west 
coast to report to his plane, we didn't know whether or not he was 
going to get on that plane, because his convictions were so strong. 
The only thing I think that took him off, finally, was the optimism 
of youth that of course this isn't going to happen to me; the fact 
that he knew perfectly well that he would face 6 years in jail; plus 
the fact that he was a sufficiently conscientious person that he 
thought that even going into an immoral situation, that he sincerely 
believed he could help his fellow man, and he went in that spirit. 

Mrs. Ransom. May I add that I think that he would have under- 
stood perfectly somebody unable to go, and if he could, certainly we 
can. 

And I don't see how in any way it would dishonor them. He cer- 
tainly would not have had the opinion that if Joe Jones had gone, I 
might not be dead. I just don't think in this kind of situation that 
you can say that. 

Senator Kennedy. Sometimes, it is suggested, that those who have 
serious reservations about the involvement in Vietnam and have 
left the country because of it, are somehow cowards, or gutless, 
ashamed to do their duty. 

Certainly there are no two people who knew their son better than 
the two of you. 

I'm interested in what you could tell us about his views. In 
his reservation about going to Vietnam, did you detect a lack of 
courage, or was it because of a higher sense and higher purpose of a 
very deep and sincere moral concern and commitment and outrage 
about the involvement in Southeast Asia. 

Mr. Ransom. I think clearly the latter. I wouldn't pretend for a 
moment that he didn't write to us constantly of his fear of combat, 
and having been a veteran myself, I can only say I know whereof he 
speaks. I don't think that a man who goes into combat can look for- 
ward to it, and he was afraid. 

But that was not the motivation. 

Mrs. Ransom. Again, I'd like to add that I think that, although 
he was quite convinced — he had read a lot of things, and he talked 
to people who had come back from Vietnam, and he was interested 
in finding out why we were in Vientnam, what we were doing there; 
and it was important to him to understand that. 

And also, when he got there, his letters clearly indiated that no 
Vietnamese person that he encountered wanted him there. So he was 
questioning enough to wonder what in the world all this misery that 
he was in the middle of was going to accomplish ; and he wrote that. 

So I think that when we're talking about courage, or people not 
being courageous, I don't think that enters in exactly. I mean, he 
was afraid. He was certainly afraid of being killed. In fact, he 



253 

wrote of his first encounter which dealt with the first man he lost in 
his platoon. He stepped on a mine and was completely blown apart 
before his very eyes ; and it angered him, and it certainly frightened 
him. 

But I just have the feeling that he wasn't the kind of person that 
would feel that somebody who refused to go was lacking in courage. 

Senator Kennedy. Let me ask you, Mr. Ransom — you're a lawyer 
for one of the great companies of this Xation, and you favor am- 
nesty. 

As a lawyer, how are we going to live in an orderly society, in a 
legalistic society, if we are going to expect that young people or old 
people are going to be solely guided by their moral beliefs, as legiti- 
mate as they may be; that they are going to take upon themselves 
the responsibility to violate a law and then the country is prepared 
to grant them amnesty ? 

How are we going to have a system of laws, and have an orderly 
society, if we are going to follow that course of action ? 

Mr. Ransom. Well, I simply think we have to make an exception 
in this war. 

I think this has been an extraordinary and unique situation in de- 
stroying the confidence of an entire generation in what their country 
stands for; and I think the only way to set that entire generation 
back, one of the ways, is certainly to grant amnesty to those who did 
have the moral convictions to live by their consciences in spite of the 
law. 

I agree with you, it certainly would be hard to conduct the war if 
you were to grant amnesty in the middle of it; but now that there's 
a prospect that the war may soon be over, I think that it is most ap- 
propriate to try to redeem these people. 

Senator Kennedy. And you think we should do that now, or at 
the end of the war, or when ? 

Mr. Ransom. I would like to see it come the minute the war is 
over. 

I don't wish, as my wife said, to have us delude ourselves into 
talking about amnesty, if a part of that is to do this because we 
think the war is over, because it certainly isn't. 

There were 1400 killed or wounded in Vietnam last week. We 
seem to take comfort from the fact that two of those were American 
dead, and 20 were American wounded; but the war goes on, very 
much so. 

Senator Hart. When amnesty is granted, as you urge that it 
should be, would you advise us to process it on a case-by-case basis % 

Mr. Ransom. No, sir; I would not. 

I think the problem is far too big to handle that way. I think it's 
got to be a general amnesty, I think it's got to be nonpunitive with- 
out conditions. 

I think if you base amnesty for this generation of our young peo- 
ple on forgiveness, they're going to say we don't want your forgive- 
ness. 

Senator Hart. But some of us are troubled by the all-inclusive 
nature of those in Canada if the grant of amnesty is other than 
selective. 

80-620 — 72 17 



254 

There are, I assume, men in Canada who are carried as deserters, 
or registrants who didn't report, or whatever, who really went to 
Canada because they just robbed a bank or some outrageous thing 
like that. 

Plow do you handle that ? 

Mr. Ransom. I don't think that the amnesty should embrace the 
persons who went there for other than reasons of conscience. I think 
what you say is particularly true with regard to the relatively 
smaller group in Sweden, for example. 

There are of course in Canada many people who have not broken 
any law because they left before they broke it. But there are admit- 
tedly also runaways in Canada, kids who are simply getting away 
from home anyway, or perhaps they had a drug problem when they 
went. 

I don't include those, and I don't know the mechanics of how you 
would separate the two groups out, but I would indeed make the 
distinction. 

Senator Hart. And once you would agree that that distinction has 
to be drawn, logically I think that you are almost compelled to 
admit the need for some mechanism to identify from among the 
total those who by reason of conscience left. And that would be a 
very difficult problem. 

Mr. Ransom. I will give that some thought, and try to submit a 
paper to you later. 

Senator Hart. Though not directly on the subject of Senator Ken- 
nedy's hearings, given your experience now, would you suggest how 
we should handle, if there is another selective service act, the treat- 
ment of the man who has conscientious objection to a particular war 
as distinguished from the existing requirement of an across the 
board objection to war? 

Mr. Ransom. I have generally favored selective conscientious 
objection, but of course that is not a part of the law. 

But I'm not sure just yet that you can run a war if you can per- 
mit selective conscientious objection. I think the real tragedy is not 
whether or not you have selective conscientious objection, but 
whether a person who is an objector can get by his draft board. 

Of course you are taking care of a part of that now by permitting 
a man to be represented before his board, but one of my own sons 
went for his conscientious objector hearing, and asked if he could 
take his minister as a witness, and of course he was turned down. 
And not only was he denied the right to have his own witness, but 
he was also denied his conscientious objector status. 

Senator Hart. Well, I would thank you particularly for your 
willingness to serve as a draf t J councellor. I've had some experience 
with my own sons in this area, and it is incredible the fog into 
which an 18- or 19-year-old is catapulted. 

Mr. Ransom. And I'm afraid we as a legal profession abdicated 
our responsibilities to these kids absolutely. 

Senator Hart. And finally, you mentioned the business of who 
speaks for those who died. Who really can claim to know what they 
would counsel us this morning if they were here. 



255 

The one certain thing that I would imagine is that they would be 
the strongest petitioners for peace in the world. What they would 
sav about amnesty I wouldn't even want to guess. 

Senator Mathias. Again, I want to thank you, Mr. and Mrs. Ran- 
som. 

Senator Kennedy. You've been a great service to this committee, 
and we appreciate very much your being here. 

Mr. O'Neil, James A. O'Neil, member of the Truman Amnesty 
Review Board. Mr. O'Neil is the only living member of the Presi- 
dential Amnesty Review Board created by President Truman after 
the Second World War. He sat as one of the three members of the 
Board for a year, meeting mainly on weekends and holidays, trying 
to sort out the cases of those Americans considered for amnesty 
under the criteria established. 

We are pleased that you should be with us today and give us yottr 
thoughts, the parallels and differences between the situation in 
World War II and today, as well as, I think, the mechanism that 
was established. 

STATEMENT OF JAMES O'NEIL, TRUMAN AMNESTY BOARD 

Mr. O'Neil. Mr. Chairman, Senators Hart and Mathias, unfortu- 
nately I am the only surviving member of the Amnesty Board, ap- 
pointed by President Truman on December 23, 1946. 

Senator Mathias. And since this situation has come about, I hope 
that is one which is continued for many years. 

Mr. O'Neil. May I say this at the outset, that the question of gen- 
eral amnesty arose at the initial meetings of the Board, which was 
in January of 1947. 

I have not prepared a statement as such, Mr. Chairman and mem- 
bers of the subcommittee, but I do have the report of the President's 
Amnesty Board, the first and final report, which was delivered in 
December of 1947; and I would respectfully suggest that it be incor- 
porated as part of the record of the proceedings. 

(The report referred to follows:) 

Report of the President's Amnesty Board 

The President's Amnesty Board, established by Executive Order of December 
23, 1946, to review convictions under the Selective Training and Service Act of 
1920, has completed its task and submits this, its first and final report. 

Before adopting any general policies, the Board heard representatives of 
interested parties and groups. It heard representatives of historic peace 
churches, of the Federal Council of Churches of Christ in America, leaders of 
the Watchtower Bible and Tract Society (whose followers are known as Jeho^ 
vah's Witnesses), officials of the U.S. Army and Navy, and the National Head- 
quarters of Selective Service, representatives of citizen's groups, veterans' 
organizations and pacifist organizations, some of the violators themselves, for- 
merly inmates of penal institutions, appeared, either in person or by represent- 
atives and were heard. 

In perhaps one half of the cases considered, the files reflected a prior record 
of one or more serious criminal offenses. The Board would have failed in its 
duty to society and to the memory of the men who fought and died to protect 
it, had amnesty been recommended in these cases. Nor could the Board have 
justified its existence, had a policy been adopted of refusing pardon to all. 



256 

In establishing policies, therefore, we were called upon to reconcile divergen- 
cies, and to adopt a course which would, on the one hand, be humane and in 
accordance with the tradition of the United States, and yet, on the other hand, 
would uphold the spirit of the law. 

Examination of the large number of cases at the outset convinced us that to 
do justice to each individual as well as to the nation, it would be necessary to 
review each case upon its merit with the view of recommending individual 
pardons, and that no group would be granted amnesty as such. 

Adequate review of the 15.S05 cases brought to our attention would have 
been impossible had it not been for the cooperation of government departments 
and agencies, such as the Office of the Attorney General, the Federal Bureau 
of Investigation, the Bureau of Prisons, the Criminal Division of the Depart- 
ment of Justice, the U.S. Probation Officers, the Administrative Office of the 
U.S. Courts, U.S. Attorneys throughout the country, the Armed Forces of the 
U.S., and the Headquarters of Selective Service. The records of these offices 
were made available, and those in charge furnished requested information. 

The information derived from all sources was briefed by a corps of trained 
reviewers. It included such essential data as family history, school and work 
records, prior criminal record, if any. religious affiliations and practices, Selec- 
tive Service history, nature and circumstances of offenses, punishment imposed, 
time actually served in confinement, custodial records, probation reports, and 
conduct in society after release. In addition, the Board heard in most 
instances psychiatric reports for one or more voluntary statements by the 
offender concerning the circumstances of the offense. 

When the Board organized in January 1946, about 1,200 of 15,S05 violators 
of Selective Service were in penal institutions, the number diminished daily. 
At the present time there are 626 in custody ; 550 of these have been commit- 
ted since the constitution of this Board. The work of the Board was directed 
chiefly to examining the propriety of recommending restoration of civil rights 
to those who have been returned to their homes. 

In analyzing the cases we found that they fell into classes, but that in each 
class there were exceptional cases which took the offender out of the class and 
entitled him to special consideration. The main divisions into which the cases 
fell were: (1) those in violation due to a wilful intent to evade service; and 
(2) those resulting from beliefs derived from religious training or other con- 
victions. 

At least two thirds of the cases considered were those of wilful violations, 
not based on religious scruples. These varied greatly in the light of all the rel- 
evant facts disclosed in each case. It became necessary to consider not only 
the circumstances leading up to the offense, but the subject's background, edu- 
cation and environment. In some instances what appeared a wilful violation 
was in fact due to ignorance, illiteracy, honest misunderstanding or careless- 
ness not rising to the level of criminal negligence. In other cases the record 
showed a desire to remedy the fault by enlistment in the Armed Forces. 

Many of the wilful violators were men with criminal records : many whose 
record included murder, rape, burglary, larceny, robbery, larceny of Govern- 
ment property, fraudulent enlistment, conspiracy to rob, arson, violations of 
the narcotics law, violations of the immigration laws, counterfeiting, desertion 
from the U.S. Armed Forces, embezzlement, breaking and entering, bigamy, 
drinking benzedrine to deceive medical examiners, felonious assault, violations 
of National Motor Vehicle Theft Act, extortion, blackmail, impersonation, 
insurance frauds, bribery, black market operations and other offenses of 
equally serious nature ; men who were seeking to escape detection for crimes 
committed ; fugitives from justice ; wife deserters ; and other who had ulterior 
motives for escaping the draft. Those who for these or similar reasons exhib- 
ited a deliberate evasion of the law, indicating no respect for the law or the 
civil rights to which they might have been restored, are not, in our judgment, 
deserving of a restoration of their civil rights, and we have not recommended 
them for pardon. 

Among the violators, quite a number are now mental cases. We have made 
no attempt to deal with them, since most of them remain in mental institu- 
tions with little or no chance of recovery. Until they recover mental health, 
their loss of civil rights imposes no undue burden. 






257 

The Board has made no recommendation respecting another class of viola- 
tors. These are the men who qualify for automatic pardon pursuant to Presi- 
dential Proclamation No. 2676, dated December 24, 1946. They are the violators 
who, after conviction, volunteered for service in the Armed Forces prior to 
December 24, 1945, have received honorable discharges following one year or 
more of duty. Most of those who, prior to the last-mentioned date and subse- 
quent to that date, entered the Army and received honorable discharges with 
less than a year of service have been recommended for pardon. These men 
have brought themselves within the equity of Presidential Proclamation No. 
2676. 

The second class of violators consists of those who refused to comply with 
the law because of their religious training, or their religious, political or 
sociological beliefs. We have classified them, generally, as conscientious objec- 
tors. It is of interest that less than six per cent of those convicted of violating 
the act asserted conscientious conviction as the basis of their action. This per- 
centage excludes Jehovah's Witnesses, whose cases were dealt with hereafter. 
Although the percentage was small, these cases presented difficult problems. 

The Selective Service Boards faced a very difficult task in administering the 
provisions concerning religious conscientious objection. Generally speaking, 
they construed the exemption liberally. Naturally, however, Boards in different 
localities differed somewhat in their application of the exemption. In recom- 
mending pardons, we have been conscious of hardships resulting from the 
factor of error. 

Many of the Selective Service Boards did not consider membership in an his- 
toric peace church as a condition to exemption to those asserting religious con- 
scientious objection to military service. Nor have our recommendations who 
were members of no sect or religious group, if the subject's record and all the 
circumstances indicated that he was motivated by a sincere religious belief. 
We have found some violators who acted upon an essentially religious belief, 
but were unable properly to present their claims for exemption. We have rec- 
ommended them for pardon. 

We foxuid that some who sought exemption as conscientious objectors were 
not such within the purview of the Act. These are men who asserted no reli- 
gious training or belief but founded their objections on intellectual, political or 
sociological convictions resulting from the individual's reasoning and personal 
economic or political philosophy. We have not felt justified in recommending 
those who thus have set themselves up as wise and more competent than 
society to determine their duty to come to the defense of the nation. 

Some of those who asserted conscientious objectors were found to have been 
moved in fact by fear, the desire to evade military service, or the wish to 
remain as long as possible in highly paid employment. 

Under the law, the man who received a IV-E classification as a conscien- 
tious objector, instead of being inducted into the Armed Forces, was assigned 
to a Civilian Public Service Camp. The National Headquarters of Selective 
Service estimates that about 12,000 men received this classification, entered 
camps and performed the duties assigned them. Certain conscientious objectors 
refused to go to such camps, refused to comply with regulations and violated 
the rules of the camps in various ways as a protest against what they thought 
unconstitutional or unfair administration of the camps. Some deserted the 
camps for similar reasons. We may concede their good faith. But they refused 
to submit to the provisions of the Selective Service Act, and were convicted 
for their intentional violation of the law. There was a method to test the 
legality of their detention in the courts. A few of them resorted to that 
method. Where other circumstances warranted we have recommended them for 
pardon. But most of them simply asserted their superiority to the law and 
determined to follow their own wish and defy the law. We think that this 
attitude should not be condoned, and we have refrained from recommending 
such persons for favorable consideration, unless there were extenuating cir- 
cumstances. 

Closely analogous to conscientious objectors, and yet not within the fair 
interpretation of the phrase, were a smaller, though not inconsequential 
number of American citizens of Japanese ancestry who were removed in the 
early stages of the war, under military authority, from their homes in definite 



258 

'coastal areas and placed in war relocation centers. Although we recognize the 
urgent necessities of military defense, we fully appreciate the nature of their 
feelings and I heir reactions to orders from local Selective Service Boards. 
Prior to their removal from their homes, they had been law-abiding and loyal 
■citizens. They deeply resented classification as undesirables. Most of them 
remained loyal to the U.S. and indicated a desire to remain in this country 
and to fight in its defense, provided their rights of citizenship were recognized. 
For these we have recommended pardon, in the belief that they will justify 
our confidence in their loyalty. 

Some 4,300 cases were those of Jehovah's Witnesses, whose difficulties arose 
over their insistence that each of them should be accorded a ministerial status 
and consequent complete exemption from military service, or Civilian Public 
Service Camp duty. The organization of the sect is dissimilar to that of the 
ordinary denomination. It is difficult to find a standard by which to classify a 
member of the sect as a minister in the . usual meaning of that term. It is 
interesting to note that no representations were made to Congress when the 
Selective Service Act was under consideration with respect to the ministerial 
status of the members of this group. Some time after the Selective Service Act 
became law, and after many had been accorded the conscientious objector 
status, the leaders of the sect asserted that all of its members were ministers. 
Many Selective Service Boards classified Jehovah's Witnesses as conscientious 
objectors, and consequently assigned them to Civilian Public Service Camps. A 
few at first accepted this classification, but after the policy of claiming minis- 
terial status had been adopted, they changed their claims and they and other 
members of the sect insisted upon complete exemption as ministers. The Head- 
quarters of the Selective Service, after some consideration, ruled that those 
who devoted practically their entire time to "witnessing," should be classified 
as ministers. The Watchtower Society made lists available to Selective Service. 
It is claimed that these lists were incomplete. The Selective Service Boards' 
problem was a difficult one. We have found that the action of the Boards was 
not wholly consistent in attributing ministerial status to Jehovah's Witnesses, 
and we have endeavored to correct any discrepancy by recommending pardon 
to those we think should have been classified. 

The sect has many classes of persons who appear to be awarded their 
official titles by its headquarters, such as company servants, company publish- 
ers, advertising servants, etc. In the cases of almost all these persons, the 
member is employed full time in a gainful occupation in the secular world. He 
"witnesses," as it is said, by distributing leaflets, playing phonographs, calling 
at homes, selling literature, conducting meetings, etc. in his spare time, and on 
Sundays and holidays. He may devote a number of hours per month to these 
activities, but he is in no sense a "minister'' as the phrase is commonly under- 
stood. We have not recommended for pardon any of these secular workers who 
have witnessed in their spare or non-working time. Many of them perhaps 
would have been granted classifications other than I-A had they applied for 
them. They persistently refused to accept any classification except that of 
IV-D, representing ministerial, and therefore, complete exemption. Most of 
their offenses embraced refusal to register, refusal to submit to physical exam- 
ination, and refusal to report for induction. They went to jail because of these 
refusals. Many, however, were awarded a IV-E classification as conscientious 
objectors, notwithstanding their protestation that they did not hand it. These, 
when ordered to report to Civilian Public Service Camp, refused to do so and 
suffered conviction and imprisonment rather than comply. While few of these 
offenders had theretofore been violators of the law, we cannot condone their 
selective service offenses, nor recommend them for pardons. To do so would be 
to sanction an assertion by a citizen that he is above the law ; that he makes 
his own law ; and that he refused to yield his opinion to that of organized 
society on the question of his country's need for service. 

In summary we may state that there were 15,805 Selective Service violation 
cases inducted. In this total there were approximately 10,000 willful violators, 
4,300 Jehovah's witnesses, 1,000 religious conscientious objectors and 500 other 
types. Of this total 612 were granted Presidential pardons because of a year or 
more service with honorable discharges from the Armed Forces. An additional 
approximate 900 entered the Armed Forces and may become eligible for 
pardon upon the completion of their service. When the Board was created, 



259 

there were 1,200 offenders in custody. Since that date an additional 550 have 
been institutionalized. At the present time, there are 626 in confinement, only 
76 of whom were in custody in January 6, 1947. 

Tabulation 

Convictions under Selective Service Act considered 15, 805 

Willful violators (nonconscientious objectors) (approximately) 10,000 

Jehovah's Witnesses (approximately) 4, 300 

Conscientious objectors (approximately) 1, 000 

Other types of violators 500 

Those who have received Presidential pardons under Presidential Proc- 
lamation 2676, dated Dec. 24, 1945 (approximately) 618 

Those who entered the Armed Forces and may be receiving pardon 

(approximately) 900 

Total 1,518 

Recommended by this Board 1, 523 

Total recommended for pardon and who may earn pardon through serv- 
ice in the Armed Forces 3, 041 

The Board recommends that Executive Clemency be extended to the 1,523 
individuals whose names appear on the attached list, attested as to its correct- 
ness by the Executive Secretary of the Board, and that each person named 
receive a pardon for his violation of the Selective Training and Service Act of 
1940 as amended. 

Mr. O'Xeil. I reiterate that in the initial session of the Board, the 
question of general amnesty such has been proposed here was raised, 
and after some discussion and deliberation, it was decided that even 
though it would be a monumental task, that we should examine each 
case, and base our decisions on the merits of each case. 

There were 15,805 cases before us. In order to accomplish this and 
do it within a reasonable time, an appeal was made to the then At- 
torney General. Tom Clark, to furnish us with some experienced re- 
viewers from the staff of the Justice Department. 

And that was done; and in fairness to them, without their help, 
and all the records they assembled, we would have been unable to 
complete the task even in the 1 year in which it was done. 

The Board was appointed, I believe, because President Truman 
was faced with some of the problems that have arisen in connection 
with the war in Vietnam. It would be ungracious of me to say why 
he did, or even why I was chosen; but the Board members included 
Associate Justice Owen J. Roberts as chairman, from the Supreme 
Court — he had recently retired — and Willis Smith, who was then the 
president of the American Bar Association, and later U.S. Senator 
from North Carolina. 

So in the mechanics of the operation, with the help of the review- 
ers we had the most complete records of all of those cases that were 
before us for consideration. And in the final report to the President 
of the United States, it was recommended that 1523 be granted am- 
nesty, and in view of the proclamation of December, 1945, some 1518 
other cases were granted amnesty. 

So, a total of approximately 3,041 cases were given amnesty out of 
the World War II total of 15,805. 

Senator Kennedy. If you will excuse us, that is a 5-minute warn- 
ing; we'll recess for 10 minutes. 



260 

(A brief recess was taken.) 

Senator Kennedy. We will come to order, please. 

Mr. O'Neil? 

Mr. O'Neil. Yes, Mr. Chairman. 

I wonlcl like to make this observation, on the question of general 
amnesty. 

When the report was submitted to President Truman, Chairman 
Roberts stated to the President, that "I never realized that there 
were so many men that were not entitled to amnesty," after he had 
explained the opening discussions we had on the question. 

And based upon the experiences of the Board as I view them, I 
am satisfied that because there are many close parallels between this 
situation as it existed at the end of World War II, at the time we 
were engaged in making decisions, and the current era and the Viet- 
nam conflict, that I feel sincerely that each case should be decided 
upon its own merits. And I say that because we found, as Justice 
Roberts so aptly said, there were so many who were not entitled to 
amnesty. I have no idea about the present situation. 

I recognize that we have many, many more cases to consider, but 
the monumental task should not deter us from doing what we think 
should be done properly. And because of the time element, Mr. 
Chairman, possibly my best contribution would be made by submit- 
ting myself to such questions that you might have, or any other 
members of the committee. 

Senator Kennedy. Thank you very much, Mr. O'Neil. 

As I understand, through the history of this period and the estab- 
lishment of the Board, one of the considerations of the Board in de- 
ciding the way to proceed was the recognition that a number of the 
15,000 people whose records you were going to be examining were 
involved in other offenses. 

Is that correct ? 

Mr. O'Neil. That is correct. And we discovered that many of 
them, even though they were criminal offenses, were outside the pur- 
view of selective service and its evasion itself, they were related to 
the question of having been notified whether they were going to be 
subjected to selective service. 

In other words, they were fleeing justice, as we might say. 

Senator Kennedy. I see. 

And so they went ahead to try to consider them individually. 

But I also understand that the decision was made by the Board to 
consider different classes of individuals. Is that not correct ? 

Mr. O'Neil. That is correct, Mr. Chairman. 

Senator Kennedy. Could you tell us a little bit about that ? 

Mr. O'Neil. In setting this up, first of all we had one classifica- 
tion and all individuals were notified that they could appear before 
the Board; and some took advantage of that, others were repre- 
sented by attorneys in appearing before the Board, and many orga- 
nizations appeared. 

But in setting up the classifications at the outset, there was one 
class, the Jehovah's Witnesses, and that constituted 4,304 cases. They 
had one lawyer representing them, a man by the name of Mr. Coving- 
ton. And the basis of his contention was that all should be granted 



261 

ministerial status, and we recognized that too, and some were, and 
were recommended for amnesty. 

But that immediately removed 4,304 cases from our consideration, 
other than make the recommendations that we did. 

Now, the reviewers set up categories in all classifications. Some, 
where there were some errors in the Selective Service System, in 
having classified some who were illiterate, who did not understand 
the law, and some who were Japanese citizens who had been relo- 
cated and of course were unavailable to answer the call of the draft 
board; and recommendations for amnesty for all of those were 
included in our report. 

So we attempted to classify the willful evaders, and those who 
showed utter disregard for the law; the conscientious objectors, who 
were willful violators and convictions under the Selective Service 
Act, and other types of violators. These were the basic classifica- 
tion, Mr. Chairman. 

And then there was another group, I mentioned in the opening, 
who had received Presidential pardons under the Presidential pro- 
clamation of December 24, 1945, totaling 618 ; and those who entered 
the Armed Forces and qualified for the pardon of that proclamation 
totaled 1,518. 

Senator Kennedy. In the conscientious objector area, as I under- 
stand, you did grant amnesty for conscientious objectors. 

Is that correct ? 

Mr. O'Neil. That's correct; because we found there had been some 
errors made in failing to recognize that they came under the pur- 
view of the law. 

In other words, there were the errors that did occur in the 
Selective Service Boards in making their classifications. 
_ Senator Kennedy. Is it only for those errors in the administra- 
tion of the law, and for those that had conscientious objections based 
on religion, or did you not grant some conscientious objection for 
other than religious grounds ? 

Mr. O'Neil. Yes, there were, when they could show that there had 
been a sustained, sincere objection to participation in any way, in 
war per se, as distinct from selecting a war. 

Senator Kennedy. Well, the Supreme Court finally caught up to 
you in 1970 on that. 

Mr. O'Neil. Well, I don't know as they caught up to us, but they 
caught up to the law, probably, Mr. Chairman, and changed the law, 
and we recognize that that change is in existence now, and any 
machinery that is set up would have to consider that, of course. 

Senator Kennedy. I think that you showed in that area a remark- 
able amount of foresight and sensitivity. 

Let me ask you now, for a personal viewpoint, as one who has 
been involved in this issue, and as one who has served the country in 
this area, what is your own view about amnesty. Do you think that 
there should be a period for amnesty at some time in the future? 

Mr. O'Neil. Yes. I would say this in answer to the question; to 
qualify my answer, that now is not the time to do it, I don't believe. 

When the conflict has ended, the machinery should be set up. I'm 



262 

not advocating an Amnesty Board, but some machinery should be 
set up, and I think it is fine that this committee is focussing atten- 
tion on developing the information that could be available for such 
a machinery operation. 

It should be set up to move into this question in order that it 
could be done expeditiously, and within a reasonable time. 

Senator Kennedy. I believe the type of people that you would be 
most interested in, and deserving, would be those, that had either 
serious religious objections to the war, who fell within the criteria 
of receiving amnesty because of the sincerity of their beliefs about 
the war. 

I suppose in considering the postwar period in Vietnam that cate- 
gory might be a lot larger, given the general view of many young 
people in this country about the war. 

Mr. O'Neil. I think that is so, but I think that that should be 
restricted to the examination of the record, and it would come out 
very forcibly if it is done well, as was done with the trained review- 
ers who did it for us after World War II. 

Senator Kennedy. What criteria did you use in this area? It 
seems that you had very broad latitude in using your own judgment. 

How could you determine whether the sincerity and the persua- 
siveness of an individual justified amnesty? 

Mr. O'Neil. I would say there that we relied pretty much on the 
development of the material from the reviewers. 

Now, the material that was made available to us was the family 
history, the school records, the Selective Service records, the prose- 
cution records, the court records, the probation office records, and in 
most instances the psychiatric reports plus the appearance before us 
of the individuals themselves to plead their cases, or through their 
attorneys. 

And this became the basis of our decision, and you have to look at 
it in a broad sense when you consider that; and rely on their views, 
whether they are in writing or in a personal appearance. 

Senator Kennedy. May I ask this: how did you decide on the 
Board? Was it a majority rule, say, two people thought the fellow 
was sincere, and one fellow thought he was a faker ? 

Say one fellow felt very strongly about his sincereity, and the 
other two really didn't know? What kind of guidance can you give 
us about trying to set some standards ? 

Mr. O'Neil. In answer to that question, I would say this, that 
when we ran into a situation like that, we had long discussions 
about it; but I don't recall any decision that was based on any vote 
of 2 to 1, on any individual case. There were discussions in which we 
might have opposite views, but before we finished with it, they were 
reconciled. 

Largely, I would say in that area, Justice Roberts played the 
dominant part because of his judicial position, number one, and his 
experience ; and plus his background. 

Senator Hart. I appreciate your testimony, and I'm sorry I 
missed some of it. 

Senator Kennedy. Thank you very much, we appreciate very 
much your coming. 



263 

Mr. O'Xeil. I welcome the opportunity to be of such service as I 
can. 

Senator Kennedy. General Benade. 

General Benade is the Deputy Assistant Secretary of Defense, and 
we appreciate very much your being here. 

STATEMENT OF MAJOE GENERAL LEO BENADE, DEFENSE 
DEPARTMENT ASSISTANT SECRETARY 

General Benade. Thank you, Mr. Chairman, and members of the 
committee. I appreciate the opportunity to appear before you as a 
representative of the Department of Defense, to address the subject 
of amnesty. 

Chairman Kennedy's letter of February 7, 1972, requested us to 
focus on four aspects of this subject : one, the impact of amnesty on 
the Armed Forces; two, whether deserters should be treated differ- 
ently from draft evaders; three, the impact on military justice of 
granting conditional or unconditional amnesty ; and four, the timing 
of any amnesty. 

My remarks concern the question of amnesty for deserters from 
the Armed Forces. The issue of draft evaders lies principally within 
the purviews of the Department of Justice and the Selective Service 
System and we defer to those agencies in that regard. 

It might be helpful to begin by defining amnesty and briefly 
reviewing the application of amnesty to military deserters through- 
out our history. 

Amnesty implies a sovereign act of forgiveness for past miscon- 
duct, granted b} T a government to all or to certain persons, and often 
conditioned upon the performance of a certain act or certain acts 
within a prescribed time. 

The concepts of pardon and amnesty are often interchanged. 
Pardon releases a person, not from guilt but from the penalty 
imposed for a legal transgression. Amnesty usually releases a group 
of persons from certain penalties. 

Pardon may be granted to any kind of offender and is usually 
given after punishment for the crime has begun. Amnesty is usually 
granted to political offenders, often before a trial or punishment has 
begun. 

Amnesty may be general or particular, that is, it may cover all 
classed of offenders or be limited to certain groups. It may be condi- 
tional or unconditional. 

Recognizing that the power to grant amnesty rests with both the 
legislative and executive branches of our Government, all amnesties 
in our history have in practice been proclaimed by the President. 
His power is derived from the constitutional provision that "The 
President * * * shall have power to grant reprieves and pardons for 
offenses against the United States, except in cases of impeachment." 
This authority was used for the first time with regard to deserters 
in 1807 when President Thomas Jefferson granted full pardons to 
individuals who had deserted from the Army during the 1795 Whis- 
key Rebellion if they surrendered themselves within a period of 4 
months. 



264 

Through the years there have been other Presidential proclama- 
tions issued, generally after a war, which granted pardons to desert- 
ers. However, certain stipulations or conditions were prescribed, 
such as (1) deserters in confinement were to be released and returned 
to duty, (2) deserters-at-large, and under sentence of death, were to 
be discharged and never again enlisted in the service of the country, 
(3) deserters who returned were to forfeit all pay and allowances 
during their time of absence, (4) deserters who returned were to 
make up time lost by their absence and complete their terms of mili- 
tary obligation, and (5) deserters had to surrender themselves 
within a specified time after the proclamation. 

The last amnesty for military deserters was granted in 1924 by 
President Calvin Coolidge. This Proclamation was prompted as a 
result of a law enacted by Congress in 1912 which provided that 
deserters from the Armed Forces would forfeit their citizenship. 
Although the 1924 proclamation is often believed to be a general 
amnesty granted to deserters, it only applied to those individuals 
who had deserted after the Armistice of World War I, and only 
restored their right to citizenship which had been forfeited upon 
their conviction. Approximately 100 men were affected by the pro- 
clamation. 

There has been no general amnesty granted to individuals who 
deserted during World War II, the Korean conflict or the Vietnam 
conflict. 

More recently, on January 2, 1972, President Nixon expressed his 
views on this subject. Essentially, the President stated that he would 
be very liberal with regard to amnesty, but not while American 
servicemen were fighting in Vietnam, nor while prisoners of war 
were being held by North Vietnam. After these circumstances were 
met, he would consider amnesty, but on the basis that these persons 
would pay the price that anyone should pay for violating the law. 

On February 3, 1972. Secretary Laird substantially repeated the 
President's views. 

Within these historical and current policy considerations, I shall 
now try to answer your four questions. 

It is the position of the Department of Defense that the granting 
of any amnesty to deserters at this time, whether general or particu- 
lar, or whether conditional or unconditional, would have a serious, 
detrimental impact on our Armed Forces. 

Currently, there are about 30,000 deserters from the military serv- 
ices. Included among these 30,000 deserters are 2,323 men who have 
deserted to foreign countries. Undoubtedly, there are several thou- 
sands of men who are draft evaders. In addition, many men have 
been prosecuted within the past several years for desertion or draft 
evasion. Some have completed their sentences or been otherwise 
released. Others are still imprisoned or under court jurisdiction. 
Despite the many individual lives these substantial figures represent, 
there have also been millions of young men and women who have 
served in the Armed Forces in recent years, many of whom have 
served in Veitnam. Many Vietnam veterans are still serving in our 
Armed Forces. Some servicemen, no doubt, served reluctantly, but 
the vast majority of servicemen and women — over 95 percent — ■ 



265 

served honorably and were discharged under honorable conditions. 
We must also recognize the thousands of men who died in Vietnam, 
those who are being held captive or are missing, and their families 
and friends. A grant of amnesty would be unfair and inequitable to 
these millions of Americans who have been and are affected most 
directly by our efforts in Vietnam. 

Sennator Kennedy. Could I ask you, General : T don't know whether 
you heard, earlier, a very splendid and moving testimony of the 
Ransoms on this very point; I would be interested in what your re- 
action would be to that. 

General Benade. I was very touched and moved by their testi- 
mony. I appreciate the point that they made, and speaking to you as 
an individual, Mr. Chairman, and not in an official capacity, to me 
the great problem has been the difficulty of generalizing about this 
subject. 

I am sure that if you have not already had, you perhaps will have 
before the committee, parents of other young men who have died in 
combat, and who would express a view directly opposite of that 
expressed by Mr. and Mrs. Eansom. 

Sitting in the audience, Mr. Chairman, the impression I derived 
was how terribly complex this problem is, and the fact that it is 
possible to make a very persuasive and moving argument on either 
side of the issue. 

Senator Kennedy. That's a little comment we had written down 
here. 

But I'm interested in your comment, because you have the respon- 
sibility in this area. And I welcome this. 

General Benade. I do want to make clear, though, Mr. Chairman, 
that I believe without any reservation in that consideration of this 
problem should be deferred tmtil after conclusion of the war. To 
that extent, I would agree with Mr. and Mrs. Ransom. I understood 
their testimony to be to that effect. 

The Department of Defense considers it to be in the national 
interest to encourage the return of all deserters to military control, 
especially those in foreign countries. Experience indicates that a 
substantial number of deserters have chosen, on their own initiative, 
to surrender themselves and face the full implications of their 
actions. 

Extending amnesty to military deserters would probably influence 
some of these men to return to military control. However, amnesty is 
a delicate tool which must be used with great care and discretion to 
be certain that it does not adversely affect discipline which is so 
vital to an effective military force. 

Senator Kennedy. Let me ask you, what do you do now, for a 
young person who has deserted and wants to come back ? 

General Benade. We encourage their return to military service, 
and each case is handled on an individual basis. 

Senator Kennedy. But they don't have really any idea before 
coming back as to what's going to happen to them, would they ? 

General Benade. No, sir ; they would not. 

However, we believe they should have confidence in the integrity 
of the military court-martial system, as well as our administrative 



266 

system. Of those who have returned, some were handled by courts- 
martial and others were handled by administrative discharges. Still 
others were returned to duty, because the circumstances can vary so 
greatly. 

To take just a moment, Mr. Chairman, I think it is important to 
place military deserters in proper perspective. They can and do run 
the whole gamut. There seems to be a connotation that a deserter in 
the military service is one who is seeking to avoid service in Viet- 
nam. That of course is not necessarily true. 

There are cases of men who are presently deserters, who served, 
and served very well in Vietnam. Their desertion thereafter is for 
reasons entirely unrelated to the problems of Vietnam. So, there 
shouldn't be an automatic construction upon this, that all of these 
men are seeking to avoid hazardous duty in Vietnam. 

Senator Kennedy. That's a very useful point. 

General Benade. Now, to elaborate, when a man comes back into 
military control, the commander is charged with examining and con- 
sidering the whole background of the man's service, up to that 
point. If the man, for example, has rendered honorable service prior 
to that time, and has had no prior infractions of any kind and has 
served in Vietnam, and served honorably, and it turns out upon 
investigation that the reason for his desertion was a personal, family 
affair, or a girl friend, or financial difficulty or whatever, there is no 
reason to throw the book at him, so to speak, under those circum- 
stances. Many of the commanders will not. 

And then there are other cases where it is an aggravated culmina- 
tion of a long series of offenses. So there is a whole range in there as 
to why these men desert. 

And it's very difficult, Mr. Chairman, to generalize about it, 

Senator Kennedy. Have you tried to put these in categories, so 
that we know how many of the 30,000 are because of the war, or 
other kinds of offenses ? 

General Benade. We have some limited data, Mr. Chairman. I 
wish we could be more helpful in that regard. 

I do have some figures which we will give you which will be of 
help to the committee, an analysis of the profile of the men who 
desert. 

There is a great similiarity in the patterns in many of the cases. 
One thing that might be useful, Mr. Chairman, is to realize that of 
those who have deserted to other countries, the 2,000 some odd that I 
have mentioned, I am recalling some 600 cases. To the extent that 
we have been able to determine by individual research, it indicates 
that less than 4.1 percent were motivated by anti-Vietnam or politi- 
cal protest, and this percentage has varied only a few tenths of a 
percent over the last 4 years. 

In other words, in the great majority of the cases, the reasons for 
the desertion were other than Vietnam protest, 

Senator Kennedy. Could I get that again? Approximately 4 per- 
cent of those who desert, desert because of 

General Benade. An analysis of the data maintained on deserters 
who have gone or have attempted to go to foreign countries indi- 
cates that less than 4.1 percent were motivated by anti-Vietnam or 



267 

political protest: and this percentage has varied only a few tenths 
of a percent within the last 4 years. 

Senator Kennedy. That statistic would suggest that really there 
is a relatively small percent of deserters that have done so because 
of their sincere belief about the morality of the war in Vietnam. 

General Benade. That is based on the best evidence that we have, 
Mr. Chairman. 

May I take just a moment to show you what the reasons for 
absence are in most of the cases'? Personal and family problems, 
financial problems, inability to adjust to the military environment, 
and lack of respect for authority; irresponsibility, and we define 
that as a lack of self-discipline and self-confidence, and poor judg- 
ment ; romantic entanglement, and antimilitary protest. 

Now this, I should explain, Mr. Chairman, is a little bit different. 
The antimilitary protest here involves the individual who indicates 
that he hasn't any specific goals in civilian life. He entered the mili- 
tary to see if service life was what he thought it was, and later 
decided it wasn't. 

Another reason, attempt to escape punishment for previous offen- 
ses. Other reasons : supervisor indifference and lack of sensitivity by 
officers and noncommissioned officers to the individual's problems. 
This is through the eyes of the man. 

In the case of aliens, return to their country of origin, home and 
family ties; and the last reason, anti- Vietnam or political protest. 

Senator Kennedy. To the extent that you can give us as much 
information as possible in those areas, it would be very useful to us. 

General Benade. We would be glad to, Mr. Chairman, and with 
your permission we can work with the committee's staff and counsel, 
and we would be glad to furnish any and all data that we have on 
this subject. 

( See app. 2 below. ) 

General Benade. If I might conclude, Mr. Chairman, I have just 
a brief part of my statement remaining. 

With amnesty at this time, some military members might be influ- 
enced to desert the service, safe in the knowledge that punishment or 
continued military service would be avoided. The unrealiability and 
unpredictability that such a situation presents could seriously jeop- 
ardize our national interests and our national security. 

Senator Kennedy. Just on this point, General, what does this 
suggest about the reality of the Army at the present time ? 

I don't think there's a young person in the country who would 
want to be known as a deserter, even if given the possibility of 
amnesty. I don't think there are many of those. I think that's an 
extraordinary burden to carry, to be a deserter, even though you'd 
be granted amnesty. 

And the suggestion that if you granted it at the present time, that 
there would be wholesale numbers of people who would be willing to 
take that as a route out and branded as a deserter, sa}'s a good deal 
about morale in the Army. 

General Benade. I agree, Mr. Chairman. I would like to perhaps 
clarify this slightly. I think we must keep in mind that the Armed 
Forces consists of almost 2y 2 million men and women, many of 



268 

whom entered the service as a result of draft pressures, or were 
draft motivated, even in their enlistment. 

I think we would have to agree that large numbers of them would 
rather be someplace else. Our principal concern, and it is not some- 
thing we can quantify, Mr. Chairman, it is a value judgment — but, 
if amnesty were to be granted while the war is still going on, I 
think it is only natural that many young men who enter the service 
under duress, if you will, of the Selective Service, would see that 
amnesty were granted for those who desert and it would be human 
and understandable that they would feel, well, there is no penalty 
attached, then the stigma can't be so bad. 

I would like to think that they would still be a relatively small 
part of our force, but it could still be significant to us. 

Senator Kennedy. Let me ask this, General. 

Since you're moving toward the volunteer army, let's take the 
next point of departure which would be considering amnesty at the 
time that they draft the last American. 

Doesn't you argument fail a bit then? I agree with you about the 
draft motivation, but once you eliminate that and move to a volun- 
teer army, which is the objective of the administration 

General Benade. I think the problem would be diminished with 
an all volunteer army, but I think the principal factor that would 
make this problem diminish would be the cessation of hostilities in 
Vietnam, more than the all volunteer aspect. 

Your second question asks whether deserters should be considered 
differently from draft evaders. If amnesty is to be extended to any 
individuals, we believe a distinction should be made between draft 
evaders and deserters. 

The draft evader's absence has an indirect impact on the Armed 
Forces. His absence requires that his military obligations be borne 
by another citizen. The deserter's absence has a direct impact on the 
Armed Forces, and under certain circumstances such as combat, per- 
haps a critical impact. 

While the draft evader's absence involves an avoidance of his civic 
responsibilities and a violation of the law, the deserter by his 
absence not only avoids his military obligations, he also violates the 
oath he took upon entry into military service, and he violates mili- 
tary law. If military obligations, oaths and laws, are to have any 
continued meaning and effect, they must not be rendered inoperative 
by any untimely extension of amnesty. 

You also ask for the impact on military justice of any conditional 
or unconditional amnesty. If any amnesty were granted, the number 
of desertion cases presently in our military justice system undoubt- 
edly would be reduced. However, I can say with assurance that our 
justice system has been, and will continue to be, able to process all 
deserter cases in a fair and expeditious manner. 

Finally, you ask about the timing of any amnesty. As I have 
stated earlier, any grant of amnesty at this time would have a most 
serious adverse impact on our Armed Forces. We think it is wise 
that consideration of any amnesty for deserters be deferred until 
some future time when the requirements of Vietnam have passed. 

Gentlemen, that concludes my statement. I will be glad to try to 
answer any questions you may have. 



269 

Senator Kennedy. Just in that last paragraph — is there anything 
wrong in considering now a later grant of amnesty ? 

General Benade. No, sir; I'm heartily in favor of this subcommit- 
tee's exploring this complex problem, and I agree it should be 
looked at in advance. 

Senator Kennedy. General, can you come back this afternoon? I 
just had one area I wanted to explore. 

Senator Hart. I just have one question. 

The profile that you gave us shows that between 4 percent and 5 
percent of the deserters overseas as being politically motivated — 
what percentage of the total deserters are reflected by the men over- 
seas? 

General Benade. First I would like to clarify, if I may, Senator 
Hart, that that number indicates those who have deserted to other 
countries. These are the 2,000 plus, who have gone to Sweden, 
Canada, Mexico. 

Now, the total at-large figure, sir, is 29,892, and that includes the 
figures I have just given you. 

These are men who have been absent for varying periods of time. 

Senator Haet. Maybe we'll have to ask you to come back. 

Senator Kennedy. We have a vote now, and we're going to have 
another in 45 minutes, so can we do it at 2 :30 ? 

(Whereupon, at 1 p.m., the subcommittee recessed, to reconvene at 
2 :30 p.m. the same day.) 

AFTERNOON SESSION 

Senator Kennedy. The subcommittee will come to order. 

General, you used the figure of 4 percent for men who deserted 
because of Vietnam, and as I indicated this morning, that sounds 
unbelievably low. 

Isn't that figure really on the basis of some six or so hundred of 
those who actually returned ? 

General Benade. Yes, Mr. Chairman, I would like to clarify that. 
I would like to make it clear that of those who have deserted to 
another country — and I'm referring to the period of 1 July 1966 
through 1 January 1972 — there were a total of 3,293 of those indi- 
viduals. Now, of those individuals, 944 have returned to military 
control; 17 have been discharged in absentia, and nine have died in 
a foreign country. 

Now, of those who returned to military control, an analysis was 
made of 640 of them. Of the 640, only 4.1 percent gave as their 
reason for deserting an anti- Vietnam war belief. 

Senator Kennedy. Because that is quite a bit different than 
making the generalization in terms of the number of people who 
actually deserted because of the Vietnam war because I would think 
that those who deserted because of the war would be, you know, the 
last to come back, I would expect. It seems that if their reasons for 
returning would be that they desert the war for that reason, that 
there would be a much much greater reluctance as the war continued 
for them to come back, rather than those who have taken the jeep 
out of the motor pool. 

General Benade. It is possible, Mr. Chairman. I have no way of 
verifying that. 

80-620 — 72 18 



270 

Senator Kennedy. You also said, 2,323 who deserted are abroad. 
Isn't it true that all you're really saying is that you have the 
addresses abroad for that number and that a substantial number of 
the other 27,000 could also be in foreign countries. 

General Benade. It is possible, Mr. Chairman. 

The 2,323 that I referred to are those that have been identified as 
being in foreign countries. It is possible that there are others who 
have not been identified. 

Senator Kennedy. Do you make any kind of an evaluation as to 
those who had the Vietnam war as a sort of a secondary reason for 
or secondary cause for desertion ? 

General Benade. I believe that it is, Mr. Chairman, and I would 
like to amplify on that a little bit. 

I have before me — and I would be very happy to submit it for 
inclusion in the record — a typical absentee-deserter profile. Very 
briefly, it indicates that the typical absentee-deserter profile for the 
Army is 21 years of age grade or rank is E-4 or below, they are 
single, non-high school graduate. He averages about 20 months in 
service. 

For the Navy, he is essentially the same. His average age is 21 to 
22. His pay grade is E-3 or below, single, non-high school graduate, 
and usually in his first enlistment. 

For the Marine Corps, average age is 19 or 20, rank is E-4 or 
below. Marital status, single. Educational level, nonhigh school 
graduate. He averages about 10 to 11 years of schooling, and time in 
service averaged 12 to 18 months. 

In the Air Force, age runs just a little bit higher, 20 to 22, with 
the pay grade E-4 or below. Marital status, single, educational level 
is a high school graduate. Time in service is 24 months or less. 

Now, as I indicated this morning, Mr. Chairman, there are certain 
didn't submit to induction and fled the country. It is a rather differ- 
absentee profile, the characteristics that have been associated with 
them are immaturity with a history of previous personal failures, 
the product of an unstable home, either a broken home or a home 
plagued by some type of social-psychological maladjustment. 
Another finding, the individuals have a low frustration threshold. 

Fourth : Is a repeat AWOL offender and a history, one out of 
three, of disciplinary and administrative action. 

Senator Kennedy. That would certainly indicate that those who 
are involved in the desertions are rather different from those who 
didn't submit to induction and fled the country. It is a rather differ- 
ent profile, as I understand, for those two different classes of indi- 
viduals. 

As I understand, the deserters, primarily, are of a lower economic, 
education, and perhaps social level than the other group. They 
might be slower in realizing or recognizing, perhaps, a higher 
responsibility to conscience than those who have been more fortunate 
in terms of either education or religious connection. 

Just very briefly, now, on page 6, you talked about differentiating 
the evader from the deserter, and you mentioned that if military 
obligations and laws are to have any continued meaning, they must 
not be rendered inoperative by an untimely extension of the amnesty. 



271 

You say that the deserter who violates not only avoids his mili- 
tary, he also violates the oath he took in military service. Why is the 
military law any more important than civil law \ 

General Benade. I think they are both important, Mr. Chairman. 
I think the added significance of the violation of military law is 
that once the individual enters the Armed Forces and takes the oath, 
he thereby subjects himself or is subjected to the Uniform Code of 
Military Justice, still being responsible under civil and criminal 
laws. The importance of desertion in the Armed Forces, Mr. Chair- 
man, would be difficult to exaggerate. We are only authorized cer- 
tain strength levels, and when men desert or are otherwise absent 
without leave, that can have a serious effect on the operation or 
effectiveness of their units. 

Obviously, a unit that is in a combat zone is in a different posi- 
tion, and the presence of every man at his duty station is more vital 
to the unit than perhaps a unit, say, in the United States. 

But there is a direct correlation, Mr. Chairman, between the oper- 
ating capability of a unit, particularly the smaller units, and the 
presence for duty of the assigned complement. It is for that reason, 
that traditionally in our military history, the man who deserts his 
unit in combat or who absents himself in the face of the enemy has 
always been treated much more severely than the man who deserts 
under other circumstances, or absents himself under other circum- 
stances. 

Senator Kennedy. That is more understandable, I think, than 
someone who deserted in this country, particularly given the sort of 
profile which you have raised here in terms of those that are 
actually deserting. 

General, you have been very kind and terribly patient with us 
today. 

I'd like to just submit some written questions to you, and I want 
to thank you very much for our being here. 

(See app. 2 below.) 

Senator Kennedy. Our next witness is Kevin T. Maroney, Deputy 
Assistant Attorney General, Internal Security Division of the 
Department of Justice, is here in place of Mr. Mardian. 

Mr. Maroney, I understand, has been in the Justice Department 
for some 20 years, and I assume Mr. Maroney will be using a letter 
we have received from Mr. Mardian as the text. 

And perhaps you can summarize briefly the Department's posi- 
tion, and then we will ask some questions. 

STATEMENT OF KEVIN T. MARONEY. DEPUTY ASSISTANT ATTOR- 
NEY GENERAL, DEPARTMENT OF JUSTICE: ACCOMPANIED BY 
JOHN H. DAVITT, CHIEF OF THE CRIMINAL SECTION, INTERNAL 
SECURITY DIVISION; AND ROBERT W. VAYDA, ATTORNEY, 
SELECTIVE SERVICE UNIT. DEPARTMENT OF JUSTICE 

Mr. Maroney. Mr. Chairman, I am pleased to appear here today 
on behalf of the Department of Justice, in response to the commit- 
tee's request of February 10, 1972. 



272 

I am accompanied here today by Mr. John Davitt on my right, 
Chief of the Criminal Section of our Division, which has the imme- 
diate supervisory responsibility of the handling of selective service 
matters. I am also accompanied on my left by Mr. Robert W. 
Vayda, an attorney in our Selective Service Unit. 

In your letter, Mr. Chairman, you requested testimony from the 
Department on the Policy considerations in granting amnesty, par- 
ticularly as it a ffects pardon and paroles. You also requested that the 
Department provide the subcommittee with data on the numbers of 
individuals believed to be in exile abroad, the number of individuals 
avoiding prosecution for selective service violations in the United 
States, the numbers of complaints now pending, and the recent expe- 
rience of the Department in the prosecution of selective service law 
violators. 

The Internal Security Division responded to your letter under 
date of February 23, 1972, and if the Chair will permit, I propose to 
use the body of that statement as the basis for a formal opening 
today. 

I shall endeavor to answer in order the specific inquiries which 
were raised in the chairman's letter of February 10th. 

First, with respect to clemency. Any provision for clemency at 
this time would be in contravention of the executive policy recently 
enunciated by President Nixon on two specific occasions. The Presi- 
dent clearly rejected any consideration of amnesty at this time, 
while hostilities continue and American soldiers remain as prisoners 
of war in North Vietnam. 

Historically, a grant of amnesty to males who have refused to 
serve their country during a period of time when the country was 
engaged in actual hostilities, is without precedent. The President's 
policy is in consonance with the acts of past presidents. Only twice 
in our history has a President accorded clemency to persons who 
refused to comply with the draft laws and serve their country. On 
both occasions clemency was granted only after cessation of hostili- 
ties, and it was granted only to those draft resisters who had been 
convicted for their offenses. In 1933, President Franklin D. Roose- 
velt granted pardons and restored citizenship to about 1,500 persons 
who had been convicted of violating the draft and espionage acts 
during World War I. In 1917, President Harry S. Truman granted 
pardons which restored civil and political rights to 1,523 individuals 
who had been convicted of draft evasion and sentenced under the 
Selective Service Act during World War II. 

With respect to the question of parole, it should be observed that 
in situations where an individual has been convicted of refusing 
induction or performance of civilian work as a conscientious objec- 
tor and has been remanded to the custody of the Attorney General, 
he has the right under existing selective service regulations to apply 
for release from such custody on parole for service in the Armed 
Forces or to perform alternative civilian work. Although the present 
regulations contain no provision for the pardoning of such paroled 
individuals who served in the Armed Forces or performed alterna- 
tive civilian work, nevertheless, the right to seek a Presidential 
pardon is, of course, available to them. 



273 

Next, our information indicates that as of February 14, 1972, 
there were 4,201 fugitives against whom Federal arrest warrants 
were outstanding based on indictments filed as well as criminal com- 
plaints issued for selective service law violations. Of this number, 
approximately 2,300 are believed to be in Canada; and approxi- 
mately 460 are thought to be residing in various other foreign coun- 
tries. Thus, the balance of approximately 1,441 defendants, whose 
whereabouts are unknown, are believed to be living in the United 
States. 

As of the end of January 1972, there was a nationwide total of 
6.091 defendants against whom indictments were pending and 12,333 
pending cases reported by the Selective Service System to U.S. 
attorneys for violations of the selective service law. These pending 
cases are awaiting completion of FBI investigations and processing 
by the U.S. attorneys to determine whether the facts warrant pres- 
entation to the grand jury for indictment. Based upon our experi- 
ence during the past year, it is expected that about 80 percent of 
these cases will be dismissed without prosecution, because the com- 
pleted investigations will likely reveal that the delinquencies were 
incurred inadvertently and subsequently corrected, that there were 
valid excuses for apparent delinquencies, or that the registrants will 
rectify their delinquencies, e.g., by reporting for induction. 

Three, our recent experience in the prosecution of selective service 
law violators shows that on the average, about 40 percent of regis- 
trants ordered to report for induction fail initially to comply with 
the orders. However, approximately 80 percent of these registrants 
eventually comply with selective service requirements and thus 
remove their delinquencies. The remaining 20 percent, following 
completion of an FBI investigation, are indicted; and a substantial 
percentage of these are allowed to purge their violations by consent- 
ing to induction. Their indictments are then dismissed. 

There is contained in the letter, page 4, a table listing the new 
indictments filed in selective service cases, and a breakdown of the 
cases terminated for the preceeding 6 or 7 month period. 

As earlier noted, the substantial number of dismissals of indict- 
ments is due primarily to the fact that a great number of indicted 
draft delinquents choose to submit to induction or enlistment rather 
than stand trial. In this regard, the Department of Justice has, as a 
matter of policy, declined prosecution, where, in the absence of 
aggravating circumstances, draft resisters display a change of heart 
and belatedly submit to induction, or where conscientious objectors 
submit to an order to perform alternative civilian work. 

It should also be pointed out that the number of draft violators 
who have experienced a change of heart and elected to submit to 
induction or alternative civilian work has increased significant! 3- in 
the past several months. During the past 5 months 728 indictments 
were dismissed because indicted registrants voluntarily submitted to 
induction. As a matter of fact, that figure is 1,200 such indictments 
being dismissed since last March. 

The recent acceleration in the trial and termination of selective 
service cases was undertaken primarily to assure the defendants of 
their constitutional rights to a speedy trial. In addition, this acceler- 



274 

ated activity is intended to effect a more faithful compliance with 
the mandate of Congress, incorporated into the act itself, requiring 
the Attorney General to give priority to the trial of Selective Serv- 
ice charges. 

That concludes our formal statement, Mr. Chairman. At this point 
we would be glad to answer any questions you may have. 

Senator Kennedy. Could you tell me why, up until last year, all 
of these cases were handled in the Criminal Division, and now they 
have been moved to the Internal Security Division of the Justice 
Department? 

What is the significance of that ? 

Are they some threat to our internal security ? 

Mr. Maroney. No, sir; I don't think there is any significance in 
that transfer. We did have a change, as you know, in the adniinis- 
tration of the Division just a couple months prior to that time. I 
think part of the purpose was to give the Division additional 
responsibilities. This was one of the additional responsibilities which 
were selected by the Attorney General, and in addition to the Selec- 
tive Service violations and other important additional functions 
which were conferred on the Division about that same time, was a 
special responsibility in an area which we refer to as special litiga- 
tion cases, which gives the Division the responsibility of prosecuting 
for various offenses involving violations of the Explosives Act. 

Senator Kennedy. Well, it does not seem to be linked solely on to 
the violators of the Explosives Act. It seems surprising to me to 
take people who have declined to involve themselves because they 
questioned the morality of the war and tuck them into the Internal 
Security Division of the Justice Department. 

Now, you are well aware of the changes by the courts in the Selec- 
tive Service System, most specifically in the Welsh case. There have 
been a number of young people who have either been indicted or 
imprisoned prior to the Welsh case, and also because of the delin- 
quency regulations which were later ruled invalid by the Supreme 
Court. 

I'm wondering what, if anything, the Justice Department did for 
those people who were convicted under these different provisions as 
far as notifying them of their rights, or attempting to release them 
or insure that they were freed. 

Was anything done by the Justice Department, or did you wait 
until they initiated individual proceedings of their own ? 

Mr. Maroney. You're talking about people who have been con- 
victed and who are serving their sentences ? 

Senator Kennedy. Right. 

Or indicted, for example. 

Mr. Maroney. As far as pending indictments are concerned, those 
new legal principles, of course, would be screened at the time the 
matter came up on pretrial hearings, and where an intervening court 
decision dictated a different policy from the time when the indict- 
ment had been returned, of course, it would be implemented at that 
time, and if necessary, the indictment dismissed based on the inter- 
vening court decision. 

As far as persons who were in jail serving a sentence, it normally, 
I suppose, would fall to their counsel to bring the matter to the 



275 

attention of the court in the event that an intervening court decision 
made their continuted incarceration unlawful, or in contravention of 
the new existing law. 

Senator Kennedy. There wasn't any feeling, either withm the 
Selective Service Svstem or the Justice Department that now that 
they have been convicted under certain rules of law that had been 
overturned bv the Supreme Court, that they should be appraised of 
their rights?* Many of these young people were poor. Isn't there any 
kind of & responsibility to try to make them aware of what their rights 
might have been? .... 

Mr. Maroney. The standard procedure would be, m a situation o± 
that kind, when an intervening decision might well apply to a large 
number of outstanding indictments, would be for the Department to 
send out a circular letter to all U.S. attorneys bringing to their 
attention the new court holding and giving them a policy guideline 
as to their handling of outstanding cases, and to cause them to brmg 
about a dismissal. 

Senator Kennedy. Can you tell us how many people have been 
convicted for example, prior to Welsh, that would have been 
released because of that decision because they^ felt as a matter of 
moral consicience other than that based upon religion ? 

Mr. Maroney. No, sir ; I don't believe we have any statistics. 

Senator Kennedy. How about punitive reclassification? 

Do you know how many were convicted under punitive reclassifi- 
cation? 

Mr. Maroney. I know there were a number of cases which were 
dismissed following resolution of that problem. 

Senator Kennedy. Do you know if there are any people now in 
jail because of punitive reclassification? 

Mr. Maroney. I am unaware of that, Mr. Chairman. 

Senator Kennedy. Would there be any way of finding out ? 

Could you check that for us and let us know ? 

I suppose it would be in the defendants' briefs, wouldn't it, of 
those who are serving in jail now? 

Mr. Maroney. It would also be a question of whether or not the 
intervening court decisions, such as Welsh, were held by the court to 
be retroactive in application, not necessarily with respect to the 
Welsh decision, but with respect to other decisions along the same 
line, which sometimes are not made retroactively applicable. 

In Welsh. I think that decision would apply to any outstanding 
incarcerations, and any known to the Department would be rectified. 

And certainly, the individual defendant involved would, I'm sure, 
and through his counsel immediately bring to the attention of the 
U.S. Attorney, the facts which he thought brought his client within 
the intervening decision. 

Senator Kennedy. That always assumes, and it is often not the 
case, that these fellows have counsel, that they can afford it, that 
they have people following these things, as the Department does. 

Is that difficult to gather ? I mean, can the Department supply for 
us a list of individuals who have been tried and convicted under the 
punitive reclassifications ? 

Can you let us know that? 



270 

Mr. Maeonet. We can attempt to ascertain if we can get such sta- 
tistics, Mr. Chairman, and give them to the committee, and also, if 
possible, to furnish the committee with statistics on the number of 
indictments dismissed as a result of Welsh. 

(See following letter:) 

U.S. Department of Justice, 
Washington, D.C., March 29, 1972. 
Hon. Edward M. Kennedy, 
U.S. Senate, 
Washington, B.C. 

Dear Senator : During my appearance on March 1, 1972 at the hearings con- 
ducted by the Subcommittee on Administrative Practice and Procedure into the 
'"Draft Procedures and Administrative Possibilities for Amnesty", you asked 
me to obtain certain information, if it was available, and furnish it to the 
Committee. 

First, you asked to be advised of the number of people who were convicted, 
for example, prior to the decision in Welsh v. United States. 398 U.S. 333, 
decided June 15, 1970, who would have been released because of that decision. 
Second, you asked how many individuals were convicted "under punitive 
reclassification" and if there are any such persons now in jail. Third, you 
inquired whether any of the individuals who have been convicted (in recent 
years) under the Selective Service Act have applied for either pardon or com- 
mutation of sentence. 

With respect to your question regarding the number of individuals convicted 
prior to Welsh who would have been released because of this decision, I regret 
that we have no statistics which would be responsive to this question. This 
information would not be obtainable, except by a review of the thousands of 
selective service files, trial transcripts and briefs in the ninety-three offices of 
the United States Attorneys throughout the country. 

I assume, however, that your second question relating to the number of indi- 
viduals presently incarcerated because of "punitive reclassification", (Gut- 
knecht v. United States, 396 U.S. 295, decided January 19, 1970), was moti- 
vated, as was perhaps your first question, by the Committee's understandable 
concern that there may be individuals still in jail who were convicted prior to 
Welsh and Gutknecht and whose convictions would not have been sustained 
had those decisions been rendered by the Supreme Court before their trials. 
Although, for the reasons I have indicated, we do not have precise statistics 
concerning this question, the Bureau of Prisons has advised us that the aver- 
age time served in prison by Selective Service Act violators during the period 
1968 through January 1970 was 16 months. (All United States Attorneys were 
directed by this Department on January 30, 1970, four days after the decision 
in Breen v. United States, 396 U.S. 460, and eleven days after the decision in 
Gutknecht. to dismiss any indictment alleging an offense under the Act which 
might have resulted from a punitive reclassification). Since twenty-two months 
have elapsed following the Supreme Court's decision in Welsh, and twenty-six 
months since the decision in Gutknecht, I believe it may safely be assumed 
that any individuals who were convicted prior to these decisions and whose 
conviction would have been affected by them, are no longer imprisoned. 

In reply to your final inquiry as to how many individuals who have been 
convicted under the Selective Service Act have applied for pardon or commuta- 
tion, the following information was provided by Mr. Lawrence M. Traylor, the 
Pardon Attorney : 

"Your inquiry concerned persons convicted since 1965 under section 462(a) 
of Title 50 Appendix, United States Code, We have searched our records and 
have found only one person who was granted a pardon under these circum- 
stances. He is Edward K. K. Kaohelaulii who was convicted on January 31, 
1966 and pardoned on December 23, 1971. 

"We now have pending six applications from persons convicted under 462(a), 
United Sfatos Code 50 Appendix. 

"Our eligibility rules require a waiting period of at least three years after a 
conviction before a person can apply for a pardon. Depending upon our back- 
log it could take several years after application before a decision is reached." 



277 

T hope that the foregoing information is of assistance to the Subcommittee. 
If I may be of further help, please do not hesitate to contact me. 

Sincerely, 

Kevin T. Maroney, 
Deputy Assistant Attorney General, 

Internal Security Division. 

Senator Kennedy. Have any of the young people who were con- 
victed under the Selective Service Act applied for either pardon or 
commutation of sentence? 

Can you tell us how many have applied and what action has been 
taken ? 

Mr. Maroney. I don't have those statistics, Mr. Chairman. Of 
course, that comes within the purview of the pardon attorney. I 
would be glad to try to get those and sumit them to the committee. 

Senator Kennedy. Thank you very much. You've been very 
patient with us. 

The next panel will be the Very Eeverend John Wesley Lord, who 
is a Methodist Bishop of Washington, and the Very Eeverend Ber- 
nard Flanagan, Eoman Catholic Bishop, Diocese of Worcester, 
Mass., and I am pleased to welcome the panel this afternoon: Bishop 
John Wesley Lord of the United Methodist Church and Bishop 
Flanagan of Worcester. 

Bishop Flanagan was installed as bishop some 13 years ago by 
Cardinal dishing, and he's demonstrated his tremendous concern for 
social issues and for those who suffer abroad, and he's been enor- 
mously concerned about the problems of refugees in Bangladesh, 
and those that are disadvantaged in all parts of the world, as well 
as those in our community. 

Bishop Lord also has a Massachusetts background. He was 
installed as bishop in 1948, served in Boston for 12 years. Since then 
he's been in Washington and has been an outspoken leader on behalf 
of social justice. 

We want to welcome both of you gentlemen here this afternoon, 
and we apologize for the time of the hearing, but it was unavoida- 
ble. We appreciate your interest and presence here. 

STATEMENT OP THE VERY REVEREND JOHN WESLEY LORD, 
METHODIST BISHOP OP WASHINGTON, AND THE VERY REVER- 
END BERNARD FLANAGAN, ROMAN CATHOLIC BISHOP, DIOCESE 
OF WORCESTER, MASS.; ACCOMPANIED BY DENNIS PREEMAN, 
CONSCIENTIOUS OBJECTOR, DRAFT COUNSELOR 

Bishop Flanagan. Thank you very much, Senator. I am honored 
by the opportunity to speak before this committee. You have already 
introduced me, so I think I can omit the first pargraph of my pre- 
pared statement, and simply say that I speak here as a pastor con- 
cerned about the wounds which this tragic war has inflicted upon 
our country and its people, particularly upon its youth. In this 
capacity I am appreciative of the efforts which are being made to 
explore and come up with an answer to the vexing question of 
amnesty for those who have gone into exile, are in jail, or are living 
underground because of a conscientious objection to the Vietnam 
war. 



278 

For your information, I wish to cite statements which have been 
made by the Catholic Bishops of the United States with reference to 
conscientious objection, which is the basis on which many of these 
young people have either gone into prison or exile, and which to my 
mind is the justifying cause for now granting them amnesty. Let me 
just cite two or three of these pertinent statements of the bishops, 
and let me say that while I concur fully in these, that I speak here 
today not as a representative of the National Conference of Bishops, 
but as an individual, and as I said at the beginning, as a concerned 
pastor of souls. 

In November 1968, in their pastoral letter, "Human Life in Our 
Day," the bishops said : 

We therefore recommend a modification of the Selective Service Act, making 
it possible, although not easy, for so-called Selective conscientious objectors to 
refuse — without fear of imprisonment or loss of citizenship — to serve in wars 
which they consider unjust, or in branches of the service, (for example, the 
Strategic Nuclear Forces) which would subject them to the performance of 
actions contrary to deeply held moral convictions about indiscriminate killing. 
Some other form of service to the human community should be required of 
those so exempted. 

In October of last year the bishops issued a further declaration on 
conscientious objection and selective conscientious objection. In this 
statement they reiterated their stand, particularly with respect to 
selective conscientious objection, and went on to say : 

We are aware that a number of young men have left the country or have 
been imprisoned because of their opposition to compulsory military conscrip- 
tion. It is possible in some cases that this was done for unworthy motives, but, 
in general, we must presume sincere objections of conscience, especially on the 
part of those ready to suffer for their convictions. Since we have a pastoral 
concern for their welfare, we urge civil officials, in revising the law, to con- 
sider granting amnesty to those who have been imprisoned as selective consci- 
entious objectors, and give those who have emigrated an opportunity to return 
to the country, to show responsibility for their conduct, and to be ready to 
serve in other ways to show that they are sincere objectors. 

And then just last November the bishops again returned to the 
question of amnesty in a resolution on the larger question of the 
Southeast Asia conflict. In this they urged that the "civil authorities 
grant generous pardon of convictions incurred under the Selective 
Service Act, with the understanding that sincere conscientious objec- 
tors should remain open, in principle, to some form of service to the 
community." 

As a bishop who participated in the formulation and release of 
these statements, I concur in everything which was said. I person- 
ally and strongly support the proposal for some form of legislation 
or Executive order which would grant amnesty to these men and 
provide alternative service opportunities for them. I would further 
advocate that this service should not in any way be punitive but 
rather should be a form of service beneficial both to the individual 
and to the community. The men who fulfill this honorable service 
should, I believe, have the same GI benefits as those provided for 
men who serve in the armed forces. I also want to express concern, 
from a pastoral point of view, to simply to raise the question, for 
those men who have received less than an honorable discharge from 
the military service for various causes, which may have inflicted 
some injustices upon them. 



279 

We must see that the question of amnesty is a crucial and special 
issue at this time in our national history. As the bishops said in 
their 1968 pastoral letter which cited : 

The war in Vietnam typifies the issues which present and future generations 
will be less willing to leave entirely to the normal political and bureaucratic 
processes of national decisionmaking. It is not surprising that those who are 
most critical, even intemperate in their discussion of war as an instrument of 
national policy or as a ready means to the settling even of wrongs, are among 
the young ; the burden of killing and dying falls principally on them. 

If I were a younger man today, in light of my reflections on the 
immorality of this war which has gone on now for 10 years and has 
wreaked havoc beyond all proportionality for good, I believe that I 
could find myself in the same position in which these young men 
find themselves today. 

Some years ago, President John F. Kennedy wrote, "War will 
exist until the distant day when the conscientious objector enjoys the 
same reputation and presitge as the warrior does today." 

I believe that what thislmplies is a wholly new concept of patri- 
otism based on preservation of the planet rather than on national 
defense. It is a concept which needs very much to be fostered and 
made acceptable at a point in history when it would seem that the 
very survival of the planet earth is at stake. 

Thank you very much. 

Senator Kennedy. I have some questions, but I would like to hear 
from Bishop Lord. 

Bishop Lord. Thank you very much. Mr. Chairman. 

May I present the young gentlemen to my left, Mr. Dennis Free- 
man. He's a conscientious objector serving 2 years of alternate serv- 
ice, and serving now as draft counselor with the United Methodist 
Church in the building just across the way. 

We're happy to have Dennis sit with me. 

I am also grateful, with Bishop Flanagan, to appear on this 
panel, and to congratulate your committee, Mr. Chairman, on what 
you're doing and the way in which it is being done. 

In any discussion of amnesty as presently understood in our coun- 
try, it is to be fervently hoped that there will arise a new under- 
standing of the basic liberties and justices provided by our Govern- 
ment to its citizens. 

Amnesty is accepted by many, simply to mean a general act of 
pardon against a government, a kind of forgetting and forgiving of 
past sinful and illegal acts. 

We are now led to believe that many, if not most, of the war 
objectors now living in other countries would reject amnesty, uncon- 
ditional or otherwise. These war objectors affirm their patriotism in 
the decision they have made and the actions they have taken. 

By their early awareness and recognition of the wrongness of the 
Vietnam war, an awareness that many in America have come to 
share, they have rendered a great service to their country. "To us," 
writes one war objector, "the crime of not participating in such a 
war pales beside that which our Government asks us to commit in 
the name of democratic citizenship." Such objectors may be among 
America's best. 

Repatriation may be the right action, but it must be granted for 
the right reason. In any event, the granting of amnesty must not be 



280 

seen as a pardon or absolution for past sins committed against the 
U.S. Government. Draft dodgers and deserters in Canada and exiles 
in Sweden, and those in prison who have left their homes and fami- 
lies and country, have paid too high a price to receive it on those 
terms. 

As churchmen, we believe that government and law are to be 
respected as servants of God and human beings. We are a nation 
under God, but governments, no less than individuals, are subject to 
the judgment of God. Therefore, we recognize the right of individu- 
als to dissent when acting under the constraint of conscience and to 
disobey unjust laws as not in conformity with the gospel, while 
showing respect for law by accepting the costs of their disobedience. 
We assert the duty of churches to support everyone who suffers for 
cause of conscience and urge governments to seriously consider 
amnesty for such persons while maintaining respect for those who 
obey. 

Perhaps what we need most is a new understanding of conscience. 
I heard it discussed this morning that we are loath to discuss what 
we mean by conscience. Well, let me say this. Conscience is not a 
simple, but a very complex component of human mentality. It is 
seldom determined by a rational approach, or merely by a system of 
belief which we may embrace at a particular point in time. 

Nor is it an easy matter to articulate one's conscience, clearly and 
well. These are the assumptions of the Selective Service System. 
Conscience is often a mixture of ambivalent feelings, ambiguities 
and uncertainties, leading on occasion to contradictory statements. 
We discussed a moment ago the difference between evader and 
deserter. We have at least one presidential candidate who has 
changed his mind regarding the war. What conscience shall we con- 
sider ? 

Men in Canada and Sweden still struggle with the "why" of their 
actions. Conscience is not always a static conclusion of an ideology. 
Often it is a process. It is the process of discovering that something 
is wrong, and trying to discover what it is and how it can be recti- 
fied. 

Conscience is the process of trying to understand how to work for 
a better world. The process of conscience always requires risk-tak- 
ing, but such risk-takers for conscience sake, may be the most valua- 
ble resource a nation possesses. These are the prophets to whom our 
sons and daughters will build monuments. 

The granting of unconditional amnesty would mean more to the 
U.S. national life than it would mean to the recipients. 

The late Cardinal Gushing, whom I considered a dear and trusted 
friend during our ministry in the Boston area, in his 1970 Easter 
sermon suggested this in 'part, "Would it be too much to suggest 
that this Easter we * * * call back from over the border and around 
the world the young men who are called deserters? Perhaps this 
year we should dramatize this nation of beginning, of newness, by 
doing something unprecedented in our life as a nation." 

The strongest moral argument for granting unconditional repatri- 
ation, must therefore rest upon the wisdom and willingness of our 
Government to support conscience as a process as well as certitude 
in the life of an individual citizen. 



281 

It will be a sorry day for our Nation when conscience no longer 
gives a sign, and when custom tolerates what conscience condemns. 
These war resisters have much to say to us as a people and we will 
be impoverished as a nation if we refuse to listen and insist only 
upon punitive action. Surely one major purpose of amnesty is to 
heal wounds and divisions in war, but it is also to restore confidence 
in government on the part of those who have been alienated by the 
war. 

There has been a loss of faith in the Government of the United 
States, indeed in the conscience of our Nation, by thousands of 
Americans. An act of amnesty now would go a long way toward 
restoration of faith of young Americans in their government. 

Our great battle, as our President has said, is to bring our country 
together, to restore peace that comes "with healing in its wings." We 
trust that we have not witnessed a permanent exodus from our coun- 
try but that these exiles will return to their homeland. We need 
them to do battle here for the things they think are right, to help 
restore sanity and righteousness to our Nation, to continue to be the 
factor in human life that is provocative of noble discontent. 

I support a true amnesty, unconditional and properly understood, 
for all our war resisters in Canada and those in exile in Sweden. 

And could I just add this word, lest it be forgotten. I, too, speak 
as an individual, speaking from my own conscience and representing 
only those of my fellowship who care to stand with me. 

Senator Kennedy. Thank you very much. Those were two excel- 
lent statements. 

Bishop Lord, are you in favor of unconditionl amnesty? Are you 
for that now or at the end of the war ? 

Bishop Lord. I am for it now, Mr. Chairman. 

I would hope the two might come together. 

Senator Kennedy. Part of the problem, as I see it, is if you con- 
tinue with the Selective Service System. The administration is 
headed in the direction of ending the draft as I understand, but as 
long as you have the draft, unconditional amnesty would confront 
you with the situation where a young person is drafted and goes 
over to Canada, and in effect picks up his unconditional amnesty 
and comes on back, and therefore is not required to serve. 

Now, there are many of those that had deep beliefs about the 
inappropriateness of the draft. I myself favored and supported 
the draft last time. My concern is that otherwise you would end up 
with poor men fighting rich men's wars. In other words, in the last 
Selective Service bill there was a $3,000 bonus for anyone who 
would volunteer for a combat division. And, in effect, I thought you 
were bribing people and taking advantage of them. 

And if you look through the period of the statistics in July and 
August when we didn't have a draft, the percent of nonhigh school 
graduates increased substantially. Those that were in the lower 
quadrile in terms of mental ability increased significantly, as well. 
So, I was very much distressed by it. 

So, one of the questions, and as I read in Newsweek magazine yes- 
terday, 7 percent of the people favor your position. I'm sure you've 
stood against the wind many times in the past, as Bishop Flanagan 
has. 



282 

Bishop Lord. I feel very comfortable with that percentage, Mr. 
Chairman. 

Senator Kennedy. But certainly what we're trying to do in the 
course of these hearings is to present as best we can the different 
views to the Senate, to this committee and to the American people so 
we can begin to have serious contemplation of this whole issue. This 
is why your comments are so important and valuable. 

Let me ask, having heard earlier witnesses from the Justice 
Department and the Defense Department who challenged the con- 
cept of amnesty. I would like both of you to respond to this issue of 
permitting an individual to determine which laws he will disobey. 

How do you react to that ? 

If we contemplate unconditional amnesty, for the purposes of argu- 
ment, at the end of hostilities, how do you relate the individual de- 
termination to disobey the selective service law to other laws that they 
are outraged by, too ? 

Should we grant amnesty to those as well ? If so, then what hap- 
pens to this society of lawk? Also where do divine law and natural 
law fit into the structure ? 

Bishop Flanagan. I might reply first by saying that I think we 
have to admit that there is a very difficult and very vexing problem 
that is involved here. 

I would have to answer it in this way by simply saying that in 
the ultimate, a man's conscience has to be the criterion by which he 
makes his moral judgments. He is obligated, of course, to form that 
conscience on the basis of reflection, consideration of all the various 
viewpoints, the issues involved, but when he does come to that deci- 
sion, even though it might be against the civil law at the time, then 
it seems to be that we as Christians — and I'm speaking now of the 
Gospel — must accept his decision as one which is correct for him. 

But, I do say that it can involve a great deal of very vexing prob- 
lems for those who are involved with the Armed Forces. 

Bishop Lord. I listened to the arguments this morning, because 
this was a critical point that you put to several of those who have 
been witnesses here, We in the church know that without law and 
order we would have a society of chaos, and we could not have that. 
But, we also know that the only way we get good laws or better 
laws is in determining what laws no longer serve a good and useful 
purpose, and must be changed, and the only way to change some of 
those laws is to stand in defiance of those laws, taking the penalty 
that such disobedience requires at the moment, but with the hope 
that new laws will become a part of the government. 

After all, many of the laws that we now operate under were not 
in effect 100 years ago. Law is constantly in the process of change, 
and without this priceless ingredient of conscience and the determi- 
nation to examine law. to reexamine it, to find out why it is, we 
would be unable to establish a new and more satisfactory code. 

Think of how we have changed in the history of this country in 
the last decade, in the last two decades. The only* justification for dis- 
obedience is that it is the road to better law than we now have, and 
to think that law is unchangeable would be a kind of heresy because 
laws must change. Laws are the product of human minds and efforts 



283 

and struggle, and just as conscience is a process, so I think the laws 
of the land must be in a constant process of renewal. 

And sometimes this is brought about by those who are willing to 
disobey what they consider to be poor law in order that better law 
might be written. 

Senator Kennedy. Wouldn't it be fair to carry on your responses 
to an additional point, and that is in terms of meeting our responsi- 
bilities to this generation. 

Do we have "to have a law that is going to make a decision about 
who is right about Vietnam? Do we have to make a decision that 
says that those that fought were right and those that left were 
wrong, or that those that left were right and those who fought were 



wrong 



to* 

) 



Isn't it just enough under the general heading of reconciliation to 
implore the kind of general unconditional amnesty which both of 
you have referred to ? 

Bishop Lord. I was rather shocked this morning as I listened to 
the testimony of the gentleman, the only surviving member of Presi- 
dent Truman's Board, when he told us that three men made those 
decisions, and that all had been made unanimously one way or the 
other, and we were led to believe that perhaps Chief Justice Boberts 
was the man who made the ultimate decision. That was almost 
making of the justice a god, was it not ? 

It was rather frightening to believe that it was done that way. "We 
are not a perfect society. Granted some of them might get through, 
and would not get what they deserve, I would rather that that 
happen than that we set up a board of three men, one of whom is 
the deciding factor I could see greater error in that the error that 
might come by granting amnesty to some of those we would say are 
undeserving. 

Senator Kennedy. Bishop Flanagan, you and other bishops went 
on record concerning Selective CO's at a time when certainly this 
country wasn't prepared, and probably still isn't prepared to con- 
sider it. 

Senator Hart mentioned his amendment to the Selective Service 
Act for Selective CO's, that there were only 12 votes in favor. I 
happened to be one of the 12. 

But even at the time, when the Bishops' Conference was stressing 
the importance of it; you felt that there ought to be additional serv- 
ice involved that would not be considered punitive % 

Would this be prior to the end of hostilities ? 

Bishop Flanagan. Tacticwise, Senator, I belieA^e that I perhaps 
differ somewhat from Bishop Lord. 

It seems to me that amnesty almost inevitably has to be tied in to 
revision, or abrogation of. the Selective Service Act; were we 
still drafting men under this present Act, and granting amnesty at 
the same time, I can see possible chaos resulting. 

Also, time tablewise, it would again seem to be necessary that it be 
implemented in the aftermath of Vietnam, rather than at a time 
when the hostilities still continue. 

Like Bishop Lord, I would like to see it come soon; but I face up 
to the realities, the practical problem, that I see involved there. 



284 

He mentioned service, and I don't know whether the bishop and I 
are completely in accord on that either. I did go along with the 
Catholic bishops in their statement; I would see some good in requir- 
ing opportunities for service. Alternate service would not be puni- 
tive, I think, it should be beneficial to these men, be in keeping with 
their talents, their interests, their desire to improve themselves in 
some way or another; and beneficial also to the community; not just 
a make-work job for the sake of making work. 

My mind is not closed to the arguments of those who say that this 
amnesty should be without any condition or qualification of any 
kind, but at the present moment, I would say that my stance is that 
I would prefer to see some alternative form of service attached to 
amnesty. 

Senator Kennedy. At the end of hostilities, or at the end of the 
Selective Service System. 

Bishop Flanagan. Yes. 

Senator Kennedy. Thank you very much. 

Is there anything you'd like to say, Mr. Freeman ? 

Mr. Freeman. Yes, I do have one point I could raise, and that is, 
that I was listening this morning to the discussion about the differ- 
ent kinds and different motivations of men who go to Canada, and I 
would agree with Bishop Lord that as with conscience, as with the 
reasons, it's a combination, it's a real mix ; and I don't really see any 
way that you can tell, even with a Board, whether more than 50 per- 
cent of my reasons for going was this, or whatever. 

As an example of this, a good number of draft resisters who have 
been convicted and sentenced are not necessarily Vietnam war objec- 
tors, or principally Vietnam war objectors; but who have resisted 
because they believe the draft to be illegal and immoral in itself. 
And it seems to me that if you have a narrow definition of amnesty 
that incorporates only objectors to the Vietnam war, then you take 
out this number of people. 

I would also conclude by saying that regardless of the motivations 
for going, most of the deserters, and I would hope that you could 
get the statistics for this, who have fled the country from the mili- 
tary, would be either draftees or draft-motivated enlistees, and prob- 
ably would not have been put in the position of having to flee for 
whatever reason, had it not been for the war and the draft to begin 
with. 

That's all I have. 

Senator Kennedy. That's a very good point. 

Thank you very much. 

Our next witnesses will appear in a panel : Mr. Joseph Sax, Uni- 
versity of Michigan Law School; Mr. Henry Schwartzchild, of the 
ACLU Amnesty Division; and Dr. Willard Gaylin, professor of 
psychiatry and law, Columbia University. 

Professor Sax has been studying the legal implications of ques- 
tions of amnesty, and constitutional background. Mr. Schwartzchild 
is in a special section of ACLU, which is working on model legisla- 
tion for amnesty, and Dr. Gaylin recently, during a 5-year period, 
interviewed men in prison for their opposition Ito Vietnam, who 
have refused induction. 

Again, we apologize to the gentlemen for the lateness of the hour. 



285 

STATEMENT OF JOSEPH SAX, UNIVERSITY OF MICHIGAN LAW 
SCHOOL; HENRY SCHWARZCHILD, DIRECTOR, PROJECT ON AM- 
NESTY, AMERICAN CIVIL LIBERTIES UNION; AND DR. WILLARD 
GALLIN, PROFESSOR OF PSYCHIATRY AND LAW, COLUMBIA 
UNIVERSITY 

Mr. Sax. Thank you very much. 

I have submitted a statement, and will not read from it but would 
like to speak briefly to several of the issues covered in my statement ; 
and particularly to one question that was raised by you several times 
today. 

This is the question of what happens if we don't enforce the law 
regularly, and on a full and thoroughgoing basis, all the time. 

I hope I can put this problem to rest for you. It is of course a 
platitude among lawyers that all law enforcement is selective; there 
simply is no such thing as total law enforcement. Indeed, no society 
could operate if all the laws were enforced all the time. It is com- 
monly said that if we enforced all of the laws, there would be more 
people in the jails than outside of the jails. 

The purpose of law is to hold the society together. Yet in many 
instances, rigorous enforcement of the law would rend the society 
rather than keep its fabric whole. To take a very simple example, it 
is a commonplace for assaults to be committed in the context of 
domestic quarrels; or for parents to leave their children unattended 
momentarily, each of which could violate the law, but it would 
destroy the family if we did not enforce these laws with some dis- 
cretion, and some compassion. 

Of course, this is something known to every policeman on the 
beat, as well as to philosophers, and lawyers. I know you've had a 
fair amount of discussion in the previous days about the Civil War, 
and some of its problems ; and I don't want to reiterate that for you. 
But I would like to call your attention to a problem from the pre- 
Civil War period. 

This was the question of the Fugitive Slave Act of 1850. As you 
know, at that time, the Congress passed a law making it a felony 
punishable by fine and imprisonment to refuse, or fail to aid in the 
capture of a fugitive slave. This was a law that was widely diso- 
beyed; and we now have enough perspective on that period to say 
confidently that it was a good thing that the Fugitive Slave Law 
was not rigorously enforced. 

Senator Salmon P. Chase of Ohio said "disobedience to the enact- 
ment of the Fugitive Slave Law is obedience to God." The Common 
Council of Chicago adopted a resolution denouncing the act, and 
forbidding city policemen to render any assistance in its enforce- 
ment. Similiar laws were enacted throughout Ohio, Indiana, Michi- 
gan, and Illinois. 

In Boston, when a runaway slave was seized and brought before 
the court, a crowd collected and rescued the prisoner and hurried 
him through the square. They went off toward Cambridge, the 
crowd driving along and cheering as they went. 

In Syracuse, prominent citizens participated in the rescue of a 
fugitive slave. Eighteen citizens were indicted, but the sympathy of 
the community was such that prosecutions were unavailing. 

80-620—72 19 



288 

This was the sentiment throughout the North. Judge Theophilus 
Harrington of Vermont said the only evidence of slave ownership 
that he would accept was a bill of sale from God Almighty. I think 
that the fugitive slave law, a much disobeyed law, helps to give 
some perspective to the often-stated notion that the law must be 
totally, absolutely, and rigorously enforced. 

A second question that has been raised in these hearings is 
whether this society can afford to set precedent on conscription, and 
amnesty. That is to say, the question of deterrence. I think this also 
can quickly be set at rest. 

The first reason is that it has been the custom after the wars of 
the United States, to grant amnesty in one form or another. So, it 
would certainly be setting no precedent to grant an amnesty after 
this war. 

Second, every amnesty, if one looks historically through the 
xVmerican experience, has been quite individualized and selective. 
tailored to the particular situation; and inevitably, whatever the 
Congress and the President did after the Vietnam war, or at this 
time, would be similiarly individualized. One can simply draw no 
precedent from these various acts of amnesty. Xo one could possibly 
guide his conduct specifically on the expectation of a particular 
amnesty. 

In answer to the question of deterrence, the question was raised in 
the context of making the system of conscription disintegrate. And 
it is a well-known fact among lawyers that some kinds of crimes are 
more deferrable than others. Crimes of passion, crimes of conscience 
are exceedingly difficult to deter, and one ought not to confuse the 
deterrence problem in this area with the kind of deterrence one is 
trying to provide when he enacts a taxation law, or an ordinary law 
governing business activities. 

In regard to the question of deterrence, there is something that 
ought to be said again about the Civil War period. As you know, 
there was a great furor in part of the country to prosecute Jefferson 
Davis and other southerners for treason ; Davis was in fact indicted 
three times, although he was never brought to trial. 

It was said at that time that the indiscriminate pardon of promi- 
nent traitors was sure to encourage treason in the future. Davis 
should be tried for treason, it was said, so that future generations 
might know whether such acts as his during a rebellion constituted 
treason. And Andrew Johnson himself, as you may know, is quoted 
as saying. "If it was the last act of my life, I would hang Jeff Davis 
as an example. I would show coming generations that treason should 
be made odious, and such traitors should be punished." 

Well, of course, we didn't do it; and I think the system of mili- 
tary conscription has not suffered too much from that. 

I would like to refer to another matter which I think has not been 
talked about in the context of these hearings, in terms of the 
requirement of enforcing a law, and respect for conscience. 

I refer, in my prepared statement, to a very poignant and moving 
book about a German subject who refused to serve in the Army 
during the Second World War, and who was hanged for it. And I 
think it is a useful perspective on our own situation, to contemplate 
the situation of a German subject, who was treated to all the argu- 



287 

ments in favor or rigorous law enforcement, some of which yon have 
heard this morning. 

I put in my statement a letter that he wrote to his children on the 
day before he was hanged, and I would like to read into the record 
just a brief excerpt from the letter: 

My dear little ones, your photos brought me great happiness. Of course it 
would be much better for me if I could see you again in person. But you 
should not let yourselves be disappointed just because your father never comes 
to tell you stories any mure. Today there are many children whose fathers 
cannot come now or who will never come again * * *. 

Many actually believe quite simply that things have to be the way they are. 
If this should happen to mean that they are obligated to commit injustice, 
then they believe that others are responsible. The oath would not be a lie for 
someone who believes that he can go along and is willing to do so. But if I 
know in advance that I cannot accept and obey everything I would promise 
under that oath, then I would be guilty of a lie. For this reason I am con- 
vinced that it is still best that I speak the truth, even though it costs me my 
life. For you will not find it written in any of the commandments of God or 
the Church that a man is obligated under pain of sin to take an oath commit- 
ting him to odbey whatever might be commanded of him by his secular rulers. 
Therefore you should not be heavy of heart if others see my decision as a sin. 
In the same way do not be troubled if someone argues from the standpoint of 
the family for it is not permitted to lie even for the sake of the family. I 
would not exchange my lonely cell for the magnificent royal palace. It will 
pass away, but God's word remains for all eternity * * * 

Now. my dear children, when Mother reads this letter to you, your father 
will already be dead. He would have loved to come to you again, but the 
Heavenly Father willed it otherwise. Be good and obedient children and pray 
for me so that we may soon be reunited in heaven. 

I think that letter should give us a somewhat different sense about 
the problems of rigorously enforcing the laws of conscription, as 
stated by some of those you heard, officials of the military and the 
Department of Justice this morning. 

I would also like to say briefly that there is a kind of irony in 
this whole enterprise, and it is this. Many of these who have argued 
for the continued prosecution of the war have done so on the 
grounds that if we were to leave Vietnam too soon there might be a 
bloodbath. 

I take that to mean that they fear that the victorious Vietnamese 
will not grant an amnesty to the losing side; and I take it the posi- 
tion of those who expressed concern about that is that whoever wins 
in Vietnam, despite the bitterness, ought in essence to amnesty the 
population that allied itself with the other side. I agree with that, 
myself; nnd I think it would be an oddity if we pressed the Viet- 
namese to take that position as among their own citizens, but refuse 
to take a similar position as among our citizens who refuse to serve. 

I think this analogy also casts some light on the problem before 
you. As to amnesty itself, I wish I were prepared to come before 
you with a bill all carefully drafted, but I am not. I have said in 
my prepared statement that the problem of granting amnesty today 
— though I myself strongly support a universal amnesty with only 
the most limited exceptions for people who have committed heinous 
offenses — is exceedingly difficult to do this now, while conscription 
and the war goes forward. 

I have in my statement recommended several moderate possibili- 
ties. One is to adopt either the volunteer army idea, or the selective 
objection idea, and apply it retroactively. Another is to provide the 



288 

opportunity to all of those people who are subject to, or have al- 
ready undergone prosecution, to be reclassified as conscientious 
objectors, and to bring to bear a rather more liberal definition of 
conscientious objection than has previously been the case. 

As to one of the problems that you raised, about people who, for 
example, committed bank robbery and that sort of thing; this is not 
from a legal point of view a terribly difficult thing to take care of. 
That is, it is possible to declare a very broad amnesty and then to 
write in certain quite limited exceptions; to it for those people who 
have committed rape or robbery, maiming and so forth. 

In this regard you may at some point want to take a look at the 
amnesty that was granted by the French, following the Algerian 
War, and I have had translated the 1966 amnesty law, and I'd be 
glad to submit that. 

(The translation referred to follows :) 

Law No. 66-396 of June 17, 1966 1 

Art. (1). Are fully amnestied the definitive condemnations for crimes or 
committed in direct relation with the Algerian events as well as for crimes or 
constituting an individual or collective enterprise aimed at preventing the 
exercise of State authority or at substituting for this authority an illegal 
authority, or committed in direct relation with such an enterprise, if the 
authors of those infractions have been punished with a fine with or without 
suspension of sentence or with a prison sentence with suspension of sentence 
with or without a fine, or if condemned to a deprivation of liberty, they were 
set free before the date of promulgation of the present law. 

Art. (2). Are fully amnestied infractions committed before July 3rd, 1962 in 
direct relation with the Algerian events, when those infractions are punishable 
only with a fine, or with deprivation of liberty, with or without a fine, of a 
duration of no more than ten years. Are also fully amnestied facts of insubor- 
dination and desertion committed before July 3, 1962 in direct relation with 
the Algerian events, on condition that those facts are not related to another, 
non-amnestied, infraction. 

Art. (,3). Are fully amnestied infractions committed, between Nov. 1, 1954 
and July 3, 1962, during operation of administrative and judicial police, of the 
re-establishment of order or of the fight against enterprises aimed at him 
during the exercise of State authority or at substituting for this authority an 
illegal authority. 

Art. (5). The President of the Republic may give benefit of amnesty, by 
decree, to persons who are or who will be definitely condemned for crimes or 
delicts committed before the promulgation of the present law, and in direct 
relation with the Algerian events or constituting an individual or collective 
enterprise aimed at preventing the exercise of State authority or at substitut- 
ing for such authority an illegal authority, or in direct relation with such 
enterprise. 

1 J.O. June 18, 1966, p. 4915 ; Bull, leglsl. Dalloz, 1966, p. 244. 

Mr. Sax. That leads me to the last thing, because you must hear 
the others today. 

It has, as you know, been common both in the United States, and 
for example in France, to grant amnesty in stages. This was the case 
in the United States during the Civil War, the series of amnesties 
ever enlarging, and the same thing was true as to the Algerian War. 

This suggests that historically there has been a rising tide of sup- 
port for amnesty, once the Government got it underway. Once it was 
able to take even the first steps, it found that it was able to go for- 
ward. I'm sure you know the Civil War history very well — that, 
once the earlier amnesties were granted, President Andrew Johnson 



289 

was finally in a position by Christmas of 1868 to declare universal 
amnesty. 

And the same is true of the Algerian affair. So I would, myself, 
not be hesitant if I were you to begin something — that is, for the 
Congress to take beginning steps to recognize that it wants to deal 
with the amnesty problem. 

I have suggested in my written statement that one useful thing 
would be to create a commission with formal status as a congression- 
ally created commission, to bring forward specific recommendations 
to you. I think the failure to have a uniform agreement at this point 
among the Members of Congress, as to what steps would be taken, 
ought not to discourage you from doing whatever you can do to 
make it clear to the public that you as members of the Congress, 
view this as an issue of importance with which we must begin to 
grapple. 

Thank you. 

(The complete prepared statement of Professor Sax follows :) 

Testimony of Joseph L. Sax, Professor of Law, University of Michigan 

Amnesty raises anew the agonizing problem of a society's responsibility to as- 
sure tbat the law is enforced. Often stated as the question whether we can af- 
ford not to enforce all the law all the time, the proper — and much more diffi- 
cult — question is when to refrain from enforcing the law. For it is a platitude 
among lawyers that if every law were rigorously enforced there would be at 
least as many people inside the jails as outside them. To take only the most 
obvious of examples, full enforcement of the common prohibition on the use of 
profane language in public would almost daily clear the streets of people and 
sweep them into our prisons. 

But the problem is much more far reaching than such trivial examples sug- 
gest. The purpose of law enforcement is to hold a society together against dis- 
integrating influences ; yet total law enforcement would often have just the op- 
posite result. Are we to jail every family member who has committed an 
unlawful assault in the context of a domestic quarrel, or put in jail every 
mother who has briefly left her child unattended in an automobile while she 
stepped into a store? To do so would utterly rend the fabric of family life, un- 
dermining rather than sustaining the very purpose for which law exists. 

Nor is the obvious need to moderate law enforcement with compassion 
merely a demand of practical justice in the day to day workings of a society. 
For there are other loyalties that must be served in any but the gri